Allowed

Debi Prasanna Pattanaik v. Amulya Prasad Nayak

Orissa HC7 Nov 2023CMP/90/2018

Case brief

AI extract

What is this about?

This High Court allowed an application under CPC Articles 226-227 to set aside an order dismissing a petition to exclude a counter-claim. The court held the counter-claim was beyond the suit's scope as it sought partition of the entire property while the suit only sought eviction of specific rooms.

What did the court decide?

Impugned order excluding the counter-claim dismissed. Counter-claim excluded. CMP allowed.

Debi Prasanna Pattanaik Vs Amulya Prasad Nayak — Property and Title | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 16:20:42

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 90 OF 2018

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(An application under Articles 226 & 227 of the Constitution of India)

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Debi Prasanna Pattanaik (since dead) through his L.Rs Dibya Ranjan Pattnaik and Others

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…… Petitioners

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-Versus-

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Amulya Prasad Nayak

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.…… Opp. Party
Advocates appeared :
For Petitioners : Mr. S.K. Dey, Advocate
For Opp. Party : Mr. Niranjan Prasad Patra,
Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 07.11.2023
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JUDGMENT

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K.R. Mohapatra, J.

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1. This matter is taken up through hybrid mode.

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2. Order dated 16^th December, 2017 (Annexure-3) passed by learned 4^th Additional Civil Judge (Senior Division), Cuttack in C.S. No.652 of 2013 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order VIII

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CMP No. 90 OF 2018 Page 1 of 6

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 16:20:42

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Rule 6-C CPC to exclude the counter-claim filed by the Defendant-Opposite Party, has been rejected.

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3. Mr. Dey, learned counsel for the Petitioner submits that the suit has been filed for eviction of the Defendant-Opposite Party. On appearance, the Defendant filed his written statement along with the counter-claim seeking for partition of Schedule-A property claiming 1/3^rd share in the same and to declare him as the adopted son of Bhajakrushna Pattanaik and Harapriya Pattanaik. The counter-claim was admitted on 13^th April, 2017 by learned trial Court. Subsequently, the Plaintiffs filed an application under Order VIII Rule 6-C CPC to exclude the counter-claim. Vide order dated 16^th December, 2017 (Annexure-3), learned trial Court dismissed such application. Hence, this CMP has been filed.

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4. Mr. Dey, learned counsel for the Petitioners submits that the relief claimed in the counter-claim does not relate to the suit property. Hence, the same does not come under the purview of Order VIII Rule 6-A CPC. As such, learned trial Court committed an error of law in refusing to exclude the counterclaim filed by the Defendant-Opposite Party.

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5. It is submitted that the suit has been filed for eviction of the Defendant from ‘B’ Schedule property, i.e., two rooms of the ground floor of the double storied building standing over Schedule-A property. But, the Defendant has claimed partition of the entire Schedule-A property. Further the Defendant has claimed for a declaration that he is the adopted son of Bhajakrushna Pattanaik and Harapriya Pattanaik. Such a prayer

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CMP No. 90 OF 2018 Page 2 of 6

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 16:20:42

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is beyond the purview of the claim made in the plaint. These material aspects were lost sight of by learned trial Court while adjudicating the petition. Hence, he prays for setting aside the impugned order under Annexure-3.

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6. In support of his case, Mr. Dey, learned counsel for the Petitioners relied upon the case of Satyender and others –vSaroj and others , reported in 2022 SCC OnLine SC 1026, wherein it is held as under:

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“18. xxx xxx xxx

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[6A. Counter-claim by defendant-

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xxx xxx xxx

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(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints

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19. A counter claim can be set up only “against the claim of the plaintiffs”. Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs. It is true that a counter claim can be made by the defendant, even on a separate or independent cause of action (Jag Mohan Chawla v. Dera Radha Swami Satsang).”

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7. Learned trial Court while adjudicating the matter, relied upon the decision in the case of Datta Bandu Sadale and others –v- Sridhar Payagonda Patil and others, reported in AIR 1992 Bombay 422, which has no application to the case at hand. Hence, he prays for setting aside the impugned order under Annexure-3 and to exclude the counter claim filed by the Defendant.

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8. Mr. Patra, learned counsel for the Opposite Party submits

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that the counter-claim has been admitted since 13^th April, 2017

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CMP No. 90 OF 2018 Page 3 of 6

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 16:20:42

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and the petition to exclude the counter-claim was filed belatedly. At the time of admission of the counter-claim, the Plaintiffs had not raised any objection. But, subsequently, an application under Order VIII Rule 6-C CPC was filed to exclude the counter-claim on the ground that the relief claimed therein is not the subject matter of dispute in the suit. It is his submission that the Defendant has only claimed for partition of Schedule-A property, which is also Schedule-A in the plaint. In order to get the relief of partition suit property claiming 1/3^rd share in it, the Defendant sought for a relief to declare him as the adopted son of the father of the Plaintiffs. Thus, it cannot be said that the relief claimed in the counter-claim is not the subject matter of dispute in the suit.

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9. Mr. Patra, learned counsel for the Opposite Party further distinguishes the applicability of the ratio in the case of Satyender and others (supra) submitting that in the said case, the counter-claim was filed in respect of plots those were not the subject matter of dispute in the suit. The same is not the case in the present counter-claim. Schedule-A of both the plaint and counter-claim are one and the same. The claim to declare the Defendant as the adopted son of Bhajakrushna Pattanaik and Harapriya Pattanaik is necessary to claim for partition. Since it is an ancillary relief claimed, learned trial Court has committed no error in rejecting the petition under Order VIII Rule 6-C CPC. Hence, he prays for dismissal of the CMP.

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10. Heard learned counsel for the parties. Perused the materials on record and case law cited.

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CMP No. 90 OF 2018 Page 4 of 6

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 16:20:42

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11. From the averment made in the plaint and the prayer made therein, it is abundantly clear that the Plaintiff (being dead substituted by his legal heirs, namely the Petitioners) has only claimed for eviction of the Defendant from Schedule-B property, i.e., two rooms consisting of kitchen, Latrine/Bathroom in the ground floor of the double storied building standing on Schedule-A land. Although Schedule-A land in both the plaint and counter-claim are one and the same, but the Plaintiffs have claimed eviction of the Defendant in respect of two rooms only which is, more fully, described in Schedule-B property of the plaint. Thus, the claim for partition of the Defendant in respect of entire Schedule-A property in the counter-claim is beyond the claim in the suit and hence, not maintainable.

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12. Further the status of the Defendant is not the subject matter of dispute in the suit. Thus, the prayer in the counterclaim to declare him as the adopted son of Bhajakrushna Pattanaik and Harapriya Pattanaik is not maintainable. In view of the above, the ratio decided in the case of Datta Bandu Sadale and others (supra) is of no assistance to the Petitioner. The ratio decided in the case of Satyender and others (supra) squarely applies to the case at hand. These material aspects were not taken into consideration by learned trial Court while adjudicating the petition under Order VIII Rule 6-C CPC.

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13. In that view of the matter, the impugned order under Annexure-3 is not sustainable and is accordingly set aside. The counter-claim filed by the Defendant stands excluded. However, exclusion of the counter-claim shall not be a bar for the

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CMP No. 90 OF 2018 Page 5 of 6

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 16:20:42

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Defendant to claim the relief made therein by filing a separate suit, if it is otherwise permissible in law.

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14. The CMP is allowed to the aforesaid extent.

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15. Interim order dated 16^th March, 2018 passed in Misc. Case No.101 of 2018 stands vacated.

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