Partly allowed

Randhir Singh v. Rajinder Singh

J&K HC12 Aug 2021CR/27/2017

Case brief

AI extract

What is this about?

This court set aside the impugned order passed by the trial court which rejected the plaint under Order 7 Rule 11 CPC. The court held that a counter claim lacking pecuniary jurisdiction must be returned as an independent suit under Order 7 Rule 10 CPC, directing the trial court to pass appropriate orders after hearing both parties.

What did the court decide?

Impugned order dated 31.05.2017 set aside. Trial court directed to return the counter claim to the respondent pursuant to Order 7 Rule 10 CPC.

Randhir Singh Vs Rajinder Singh — Execution and Attachment | J&K HC (2021)

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Serial No. 230

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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CR No. 27/2017 IA No. 1/2017

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Randhir Singh …Appellant(s)/Petitioner(s)

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Through:- Mr. Anil Sethi, Advocate.

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v/s

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Rajinder Singh …Respondent(s) Through:- Mr. R.S. Jamwal, Advocate.

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Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

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ORDER

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1. Order dated 31.05.2017 is under challenge in the instant

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revision petition filed by the petitioner whereby the application filed by petitioner herein for rejection of counter claim filed by the respondent herein in a response to a suit filed by the plaintiff/petitioner herein has been rejected.

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2. According to the learned counsel for the petitioner while

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filing written statement in a response to the suit of the petitioner herein before the trial court, the respondent herein also filed a counter claim where under the respondent herein claimed to have purchased the land in question through an agreement to sell alleged to have been executed by the

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2 CR No. 27/2017

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plaintiff/petitioner in favour of the respondent herein on 16.03.1997, for a sale consideration of Rs. 2,25,000/-.

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3. According to the learned counsel, the suit filed by him is pending adjudication before Sub-Judge, CJM Samba, and that in the counter claim the value of the subject matter had been above the pecuniary jurisdiction of the Sub-Judge, CJM, as such, according to the learned counsel for the petitioner an application in terms of Order 7 Rule 11 for rejection of the plaint came to be filed wherein the impugned order has been passed.

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4. Learned appearing counsel for the respondent per contra

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would contend that even if the court wherein the counter claim was filed was lacking pecuniary jurisdiction yet the petitioner had no right in law to seek

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the rejection of the plaint in terms of Order 7 Rule 11 but instead the court itself in terms of Order 7 Rule 10 could return the plaint to the respondent herein to be presented before a competent court.

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5. Heard learned counsel for the parties and perused the record.

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6. In terms of Order 8 Rule 6-A, a defendant in a suit can file a counter claim against the claim of the plaintiff, however, the said counter claim has not to exceed the pecuniary limits of jurisdiction of the court.

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3 CR No. 27/2017

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Order 8 Rule 6-A further postulates that the counter claim has to have the same effect as the cross suit in as much as has to be treated as a plaint and governed by the rules applicable to the plaints.

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7. The counter claim if is not triable by the court where it is filed on account of lack of pecuniary jurisdiction, the same has to be returned as an independent suit back to the party filing the same in terms of Order 7 Rule 10.

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8. Perusal of the impugned order suggests that the aforesaid legal provision has been overlooked by the trial court. The trial court has undertaken an exercise for rejection of the plaint while considering the application filed by the petitioner herein for rejection of counter claim in terms of Order 7 Rule 11. The trial court admittedly has erred while passing the impugned order which is not sustainable in law, so is not the application filed by the petitioner under Order 7 Rule 11 CPC.

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9. Be that as it is, it is deemed proper and appropriate to direct the trial court to pass an appropriate order for return of the counter claim to the respondent herein while retaining the written statement filed to the suit by the petitioner. Appropriate orders in this regard be passed by the trial court in accordance with law after hearing both the parties. The application

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4 CR No. 27/2017

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filed by the petitioner under Order 7 Rule 11 CPC and consequently, impugned order dated 31.05.2017 are set-aside.

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10. Disposed of .

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(JAVED IQBAL WANI)
JUDGE

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Jammu
12.08.2021
SUNIL-I
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes/No

Randhir Singh v. Rajinder Singh

Case brief

What is this about?

What did the court decide?

Randhir Singh v. Rajinder Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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