CR/492/2018 of ONKAR PRASAD Vs SMT. PRABHABAI on 1 January 2000

Arguments

The High Court Of Madhya PradeshCR-492-2018

(ONKAR PRASADVs SMT. PRABHABAI)

[01][-][08][-][2018]Jabalpur, Dated :

Shri Rakesh Jain, Advocate for the petitioners.

Heard on admission.

Learned counsel for the petitioners submits that the instant revisionhas been filed against the order dated 29.06.2018 (Annexure-P/1)whereby an application made by the petitioners under Order 7 Rule 11(d) CPC has been rejected by the Court below. He submits that in viewof the settled principle of law that counter claim cannot be filed solelyagainst the co-defendants, therefore, the same deserved to be rejected.

As per the facts of the case, the petitioners/plaintiffs have filed asuit for declaration and permanent injunction, in which, the respondentshave been made defendants except respondent No.6 who was plaintiff ina suit filed by the present petitioners. Thereafter, a counter claim hasbeen filed by the defendants but respondent No.6, who was earlierplaintiff No.7 moved an application for his transposition as a defendantin the counter claim and that application was allowed by the Court belowand accordingly plaintiff No.7 namely Shri Abhishek Pateriya transposedas defendant in the counter claim.

Learned counsel for the petitioners submits that after transpositionof the plaintiff as defendant in counter claim, an application has beenmade under Order 7 Rule 11(d) of CPC for rejection of the counter claimsaying that the same cannot be filed against the co-defendant.

The Court below considered and rejected the application on theground that the contention of the plaintiffs that the counter claim cannot beentertained against the co-defendant and accordingly the same ought tohave been rejected by the Court, but the Court has found that it was notsolely against all the co-defendants however only one plaintiff laterontransposed as defendant and no relief has been claimed against him, but,basically in the counter claim, the defendants have claimed relief againstthe present petitioners/plaintiffs. It is also observed by the Court belowthat the request of plaintiff No.7 to be transposed as defendant in counterclaim has been accepted by the Court restraining him to file any separatewritten-statement also from producing any evidence. In suchcircumstances, the stand of the petitioners/plaintiffs does not appear to beproper. It is clear from the available circumstances that the counter 2CR-492-2018claim was not solely against co-defendants but is mainly against theplaintiffs and only one plaintiff has been transposed as co-defendant doesnot make the counter claim invalid and same does not fall within thecriteria laid down under Order 7 Rule 11 (d) of CPC. On a perusal of thejudgment of the Supreme Court relied upon by learned counsel for thepetitioners in the case of Rohit Singh and Others v. State of Bihar andOthers (2006) 12 SCC 734, it is clear that the ratio laid down by theApex Court runs against the petitioners which very categorically dealsthat the counter claim is not maintainable if directed solely against co-defendants. As already set-forth that the counter claim was solely notagainst the co-defendants, but it was against the plaintiffs and only oneplaintiff who stood transposed as co-defendant and against whom norelief was claimed in the counter claim. Thus, the order passed by theCourt below does not suffer from any material irregularity and thus theCourt below has not committed any error while passing the orderrejecting the application filed by the petitioners.

Accordingly, the petition since suffers from merits, is liable to beand is hereby dismissed.

Digitally signed by SUDESH KUMAR SHUKLA shuklaDate: 2018.08.08 17:27:39 +05'30'

(SANJAY DWIVEDI)JUDGE