*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P. 21/2010 and CMs No.2199-2200/2010

Decided on 04.02.2010

IN THE MATTER OF :

SUKHPREET SINGH

..... Petitioner

Through : Mr. Sudhir Nandrajog, Sr. Adv. with

Mr. Abinash K. Mishra, Adv.

versus

KAMALJEET KAUR

..... Respondent

Through : None.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

1. Whether Reporters of Local papers may Yes

be allowed to see the Judgment?

2. To be referred to the Reporter or not?

Yes

3. Whether the judgment should be

Yes

reported in the Digest?

HIMA KOHLI, J. (Oral)

The present petition is directed against the order dated

19.11.2009 passed by the learned Civil Jude on an application filed by

the petitioner (defendant in the court below) under Order 8 Rule 6-A

read with Order 7 Rules 10, 10A & 11 CPC seeking rejection/dismissal/

return of the plaint filed by the respondent (plaintiff in the court blow).

By the impugned order, the learned trial court dismissed the aforesaid

application of the petitioner/defendant and held that the suit filed by

2010:DHC:675

the respondent/plaintiff against the petitioner/defendant, for declaring

the gift deed dated 29.8.2002 in respect of first floor along with

complete roof rights of the premises bearing No.3/327, Nirankari

Colony, Delhi as null and void, was maintainable.

2.

The trial court examined the submissions made on behalf of

the petitioner and held that filing of a counter claim along with the

written statement is not obligatory and it is the discretion of the

defendant whether to file a counter claim or institute a separate suit.

It was further observed that the respondent was well within her right

to have sought a relief of declaration by instituting an independent suit

and that the provision of Order 2 Rule 2 CPC had no application

because it was the first suit of the said nature filed by the plaintiff in

respect of the suit property.

3.

Counsel for the petitioner submits that the trial court erred

in passing the aforesaid order for the reason that the provisions of

Order 8 Rules 6-A and 9 CPC give a right to a defendant in a suit to file

a counter claim in addition to his right of pleading a set-off against the

claim of the plaintiff. He states that in the present case, the petitioner

(plaintiff in the court below) had instituted a suit in May, 2008, for

eviction of the respondent herein (defendant in the said suit) from the

same premises, as also for possession thereof, apart from seeking a

decree of mandatory and perpetual injunction and declaration against

the respondent. He states that in view of the fact that the aforesaid

2010:DHC:675

suit was instituted by the petitioner prior in time to the suit instituted

by the respondent on 13.08.2008, the respondent had an opportunity

not only to file a written statement in the said suit, but also to file a

counter claim against the claim of the petitioner and having failed to

do so, the present suit instituted by her later in time, is hit by the

provisions of Order 7 Rule 11(d) CPC, which mandates that the plaint

be rejected when the suit appears from the statement in the plaint to

be barred by any law.

4.

In support of the aforesaid submission, counsel for the

petitioner relies on a judgment dated 15.09.2008, passed by a Single

Judge of this Court, in CS(OS) 758/2006 entitled Renu Chhabra vs.

MCD.He particularly refers to para 11 of the aforesaid judgment to

urge that before instituting the present suit, leave had to be sought by

the respondent from the trial court under Order 2 Rule 2 CPC, which

she failed to obtain. Reliance is also placed on the case, Jag Mohan

Chawla & Anr. vs. Dera Radha Swami Satsang & Ors., reported as

(1999) 4 SCC 699 to highlight the object of the amendment

introduced by Rules 6-A to 6-G of Order 8 of the CPC.

5.

O