IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT CIVIL REVISION PETITION.No.289 OF 2015 BETWEEN Smt. Umadevi W/o Siddeswaraswamy Aged about 56 years Residing behind Government Junior College 2nd Cross, Hiriyur – 572 143.
Chitradurga District. ... Petitioner (By Sri. B.M.Siddappa, Advocate) AND 1. Smt. Vijayalaxmi D/o Chandrasekharaiah Aged about 40 years 2. Smt. Manjula D/o Chandrasekharaiah Aged about 42 years 3. H. Chandrashekharaiah S/o late Sannahanumanthappa Age: Major, Agriculturist 4. Jnanappurnamma W/o H. Chandrashekharaiah Age: Major, Agriculturist.
Respondent Nos.1 and 4 are resident of Guilal Village, Imangala Hobli Hiriyur Taluk – 572 143 Chitradurga District.
5. H. Prabhakara S/o late Sannahanumanthappa Age: Major, Agriculturist 6. Danamma W/o B.N.Prabhakara Age: Major 7. Nagaraja Reddy S/o B.N.Prabhakhar Age: Major 8. Ushadevi D/o B.N.Prabhakhara Age: Major, Agriculturist 9. Latha D/o B.N.Prabhakhara Age: Major, Agriculturist 10. Kalavathi D/o B.N.Prabhakhara Age: Major, Agriculturist Respondent Nos.5 and 10 are resident of Doddabhathi Village Davanagere Taluk – 577 001.
11. L. Radhamma W/o Lakshminarasimhaiah C/o Anjinappa, Owner of Oil Mill Huliyar Road, Hiriyur – 572 143. ... Respondents (By Sri. C.N. Sathyanarayana Shastri, Adv. for R11) This Civil Revision Petition is filed under Section 115 OF CPC., against the order dated 23.04.2014 passed in O.S.No.23/2006 on the file of the Senior Civil Judge, Hiriyur, dismissing the suit as per memo.
This civil revision petition is coming on for Admission, this day, the Court made the following:
O R D E R The petitioner is before this Court under Section 115 of CPC, assailing the order dated 23.04.2014 passed in O.S.No.23/2006 on the file of Senior Civil Judge, Hiriyur, whereby, it was ordered to treat the written statement filed in O.S.No.23/2006 by petitioner/defendant No.10, as written statement in O.S.Nos.70/2007 and 71/2007.
2. The petitioner herein is defendant No.10 and respondent Nos.1 and 2 are plaintiffs in O.S.No.23/2006 filed for partition and separate possession of the suit schedule properties. It is stated that the present petitioner/defendant No.10 was subsequently impleaded and filed the written statement claiming counter-claim under Order VIII Rule 6A of CPC. The counter-claim made by the petitioner/defendant No.10 reads as follows:
“Therefore, it is humbly prayed this Hon’ble Court may kindly be pleased to declare that (a) the sale deed dt: 10.07.1995 alleged to be executed in favour 9th defendant is not binding on the share of the 10th defendant and for partition and separate possession of 1/3 share of the defendants over the suit schedule property.”
3. Subsequently, the plaintiffs filed a memo stating that the plaintiffs have executed registered consent deed in favour of defendant No.9 and consented for the sale deed dated 10.07.1995 executed by defendant No.1. Hence, plaintiffs prayed to dismiss the suit in O.S.No.23/2006. Defendant No.10 objected to the said memo contending that defendant No.10 has claimed counter-claim in the instant suit. While, the Trial Court passing the order on memo held that the written statement of defendant No.10 filed in O.S.No.23/2006 to be treated as written statement in O.S.Nos.70/2007 and 71/2007 pending between the parties. Aggrieved by the said order, the petitioner is before this Court in this civil revision petition.
4. Heard the learned counsel for the petitioner and respondent No. 11.
5. Learned counsel for the petitioner submits that the order passed by the Trial Court is opposed to the provisions of the Code of Civil Procedure, particularly, Order VIII Rule 6D of CPC. He submits that when a counter-claim is filed in a suit, even though the plaintiff withdraws the suit, the counter-claim is to be proceeded. In the instant case, even though the plaintiffs filed a memo to dismiss the suit, the Court ought to have proceeded with the counter claim of defendant No.10/petitioner herein.
6. Per contra, learned counsel for the respondent No.11 would submit that the counter-claim filed by petitioner/defendant No.10 herein is not in the format of the counter-claim and further states that no court fee is paid on the counter-claim. It is his further submission that the husband of the petitioner/defendant No.10 is witness to the sale deed dated 10.07.1995 and she was aware of the execution of the sale deed. Further, he submits that the trial Court has ordered to treat the written statement in O.S.No.23/2006 as the written statement in O.S.Nos.70/2007 and 71/2007 and the petitioner/defendant No.10 has not participated in the proceedings of O.S.Nos.70/2007 and 71/2007. Therefore, he prays for dismissal of the petition.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the following point would arise for consideration;
a) whether the trial Court is justified in ordering to treat the written statement filed in O.S.No.23/2006 as written statement in O.S.Nos.70/2007 and 71/2007?
Answer to the above point would be in the negative for the following reasons:
8. The suit is one for partition and separate possession of suit schedule properties. Defendant No.10 filed written statement claiming counter-claim, which is extracted above and she sought for declaration that the sale deed dated 10.07.1995 alleged to have been executed in favour of 9th defendant is not binding on the share of defendant No.10 and for partition and separate possession of 1/3rd share of the defendants over the suit schedule properties. The proviso to Order VIII Rule 6A of CPC, provides for counter-claim by the defendant and Sub- Clause 2 of Rule 6A of CPC, makes it clear that when the counter-claim is filed it would have the effect of a cross-suit so as to enable the Court to pronounce final judgment in the same suit, both on the original claim and on the counter-claim. It further makes it clear that 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. The counter-claim shall be treated as plaint and governed by the rules applicable to the plaints. Order VIII Rule 6D of CPC reads as follows:
“6D. Effect of discontinuance of suit – If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.”
The above provision makes it abundantly clear that where a defendant sets up a counter-claim, if the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceed with. In the instant case, admittedly, the petitioner/defendant No.10 has filed the written statement under Order VIII Rule 6A, including counter-claim. But the trial Court has committed a grave error in ordering that the written statement filed by defendant No.10 in O.S.No.23/2006 to be treated as written statement in O.S.Nos.70/2007 and 71/2007.
9. The contention of respondent No.11 that the counter-claim is not in the format as required and defendant/petitioner herein has not paid the Court fee is not the ground on which the trial Court proceeded to pass order. The contention of learned counsel for respondent No.11 that the husband of the petitioner is witness to the sale deed and she was aware of the execution of sale deed is not relevant for the purpose of deciding the present petition.
10. Accordingly, the Civil Revision Petition is allowed and the order dated 23.04.2014 insofar as ordering to treat the written statement filed by defendant No.10 in O.S.No.23/2006 as written statement in O.S.Nos.70/2007 and 71/2007 is set aside. Since, the counter-claim would be in the nature of plaint, the Court shall examine the maintainability of counter- claim in the facts and circumstances of the case and if it is in accordance with law shall proceed further in accordance with law.
Sd/- JUDGE NR/-