THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL REVISION PETITION No.1792 OF 2018

O R D E R:

This Civil Revision Petition is filed by the petitioner/plaintiff under Article 227 of Constitution of India against the Order, dated 28.02.2018 passed in I.A.No.137 of 2017 in O.S.No.152 of 2014 on the file of I Additional Chief District Judge, City Civil Court at Secunderabad.

2. Heard Sri B.S. Prasad, learned Senior Counsel representing Sri Nagaraju Naguru, learned counsel for the petitioners. Ms. Swetha Pamidi, learned counsel appearing for respondent Nos.1 and 2 and Sri Emmidala Kotaiah, learned counsel appearing for respondent No.3.

3. The revision petitioners are the plaintiffs and the respondents are the defendants before the trial Court. For the sake of convenience, hereinafter the parties are referred to as they arrayed before the trial Court.

4. The brief facts of the case are that plaintiff Nos.1 and 2/Petitioner Nos.1 and 2 filed a suit for eviction of the defendants and possession. The defendants filed a written statement-cum- counter claim on 14.03.2015 seeking a relief for partition of suit schedule property into three equal parts by metes and bounds by appointing an advocate-commissioner. Pending the suit as well as the counter-claim, the petitioners herein filed I.A.No.137 of 2017 to permit them to file a rejoinder against a counter claim made by the respondent Nos.1 and 2 in their written statement. Respondent Nos.1 to 3 filed written statement denying the allegations levelled in the plaint and also claimed that they are the legal heirs of late Bhadramma, along with the plaintiffs/petitioners and as such they being the coparceners cannot be evicted from the suit schedule property as they have equal rights in the said property.

5. No doubt, in a suit filed by the plaintiffs, the defendants are having every right to file a counter claim along with the written statement. In the present suit, the defendants have claimed a relief of partition and they are bound to pay the stamp duty. Though the said written statement was filed along with the counter claim on 04.03.2015, no court fee was paid at that time and it appears that it was paid subsequently after two years vide Memo, dated 14.11.2017 a Court Fee of Rs.200/- and the same was accepted.

6. As per sub-rule 3 of Rule 6-A of Order VIII of C.P.C. provides that in a case where a counter claim is filed along with written statement, the plaintiff will be at liberty to file a written statement in answer to the counter claim made by the defendant within such period as affixed by the Court. It is appropriate to refer the sub-rule 3 of Rule 6-A of Order VIII of C.P.C.

“[6A.Counter-claim by defendant.—

XXX (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.”

7. In the present case, it is submitted by the learned Senior Counsel that the said rejoinder by way of the present Application was filed much prior to the payment of Court fee on 14.11.2017. For all practical purposes, as such, the same has to be treated on par with the suit and that the starting point for taking the counter claim on record will be treated as 14.11.2017. However, the application under Order VIII Rule 9 of C.P.C. was filed on 21.11.2016 which is much prior to the payment of Court fee on counter claim. Learned Senior Counsel further submits that the proviso under VIII Rule 9 of CPC and Order 6A (3) contemplates the Court to fix a time for filing additional written statement. However, the trial Court has not fixed any time and the application filed for rejoinder was taken on file and registered as I.A.No.137 of 2017.

8. On perusal of the record, it shows that there are certain procedures to be followed on for filing of the application under Order VIII Rule 9 of the CPC though the C.P.C. does contemplate and also taking the counter claim as an independent suit, it is incumbent on the Court to verify th