Dismissed¶30

Dillip Kumar Nanda v. Bilash Dash and Ors.

Orissa HC20 Mar 2024WP(C)/572/2012

Case brief

AI extract

What is this about?

Counter claim; acceptance of counter claim after settlement of issues; independent counter claim versus joint written statement; Order VIII Rule 6-A CPC; amendment of written statement; Defendant Nos.3(a) and 7 sailing with Defendant Nos.4 and 9; T.S. No.154/645 of 10/2000; 1st Additional Senior Civil Judge, Bhubaneswar; W.P.(C) No.31343 of 2011 dismissed for non-prosecution; interim order M.C. No.404 of 2012 vacated; High Court of Orissa at Cuttack; Justice K.R. Mohapatra; writ petition dismissed.

What did the court decide?

No relief granted to the Petitioners; the writ petition was dismissed and the interim order dated 30th January, 2012 passed in M.C. No.404 of 2012 stands vacated (para 31). ¶30

Dillip Kumar Nanda Vs Bilash Dash and Ors. — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

No relief granted to the Petitioners; the writ petition was dismissed and the interim order dated 30th January, 2012 passed in M.C. No.404 of 2012 stands vacated (para 31).

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Issue for consideration

Whether Defendant Nos.3(a) and 7-Petitioners, who had joined a joint written statement with Defendant Nos.4 and 9, could file an independent counter claim in the suit. +1 more

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Court's answer

Defendant Nos.3(a) and 7 could not make out an independent claim in the suit, as they are sailing with Defendant Nos.4 and 9.

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Ratio / Principle

The petition for acceptance of the counter claim was filed after settlement of issues; therefore the counter claim intended to be filed by Defendant Nos.3(a) and 7 could not have been accepted.

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Key takeaways

Learned trial Court committed no error in dismissing the petition to accept the counter claim.ratio¶29

Detailed headnote1 paragraphs

W.P.(C) No.572/2012 (High Court of Orissa at Cuttack, order dated 20.03.2024, K.R. Mohapatra, J.) — Petitioners (Defendant Nos.3(a) and 7 in T.S. No.154/645 of 10/2000 before the learned 1st Additional Senior Civil Judge, Bhubaneswar) challenged the order dated 1st December, 2011 (Annexure-2) rejecting their application to accept a counter claim intended to be filed under Order VIII Rule 6-A CPC. Background: Defendant Nos.3,4,7 and 9 had filed a joint written statement; after Defendant No.3's death, his heirs Dillip Nanda and Indumati Rath were substituted as Defendant Nos.3(a) and 3(b); the parallel amendment petition had already failed (W.P.(C) No.31343 of 2011 dismissed for non-prosecution on 11th September 2023). Held: the petition for acceptance of the counter claim was filed after settlement of issues, so the counter claim intended to be filed by Defendant Nos.3(a) and 7 could not have been accepted; further, Defendant Nos.3(a) and 7, 'sailing with' Defendant Nos.4 and 9, could not make out an independent claim in the suit. The trial court's dismissal of the petition was upheld; the writ petition was dismissed as devoid of merit and the interim order dated 30th January, 2012 in M.C. No.404 of 2012 stands vacated.

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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: 21-Mar-2024 17:39:05

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 572 OF 2012

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Dillip @ Dillip Kumar Nanda and …. Petitioners another

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Mr. Omkar Panda, Advocate on behalf of Mr. Soumya Mishra, Advocate

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-versus-

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Bilash Dash and others

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…. Opp. Parties Mr. P.K. Swain, Advocate (For Opp. Party No.7)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

20.03.2024

1. This matter is taken up through hybrid mode.

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Order dated 1^st December, 2011 (Annexure-2) passed by learned 1^st Additional Senior Civil Judge, Bhubaneswar in T.S. No.154/645 of 10/2000 is under challenge in this writ petition, whereby an application to accept the counter claim intended to be filed by Defendant Nos.3(a) and 7-Petitioners, has been rejected.

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Mr. Panda, learned counsel being authorized by Mr. Mishra, learned counsel for the Petitioner submits that Defendant Nos.3,4,7 and 9 filed a joint written statement. During pendency of the suit, Defendant No.3 died and his legal heirs, namely, Dillip Nanda and Indumati Rath were substituted as Defendant Nos.3(a) and 3(b) in his place. When the matter was posted for hearing and the Petitioners were preparing for adducing evidence, they could point out that the written statement filed jointly required amendment and a counter claim is required to be filed. Since the Defendant No.4 did not

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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: 21-Mar-2024 17:39:05

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cooperate with the Defendant Nos.3(a) and 7-Petitioners to file the petition for amendment of the written statement and counter claim, Defendant Nos.3(a) and 7 independently filed a petition for amendment of the written statement and also a petition under Order VIII Rule 6-A CPC seeking permission to file the counter claim. Both the petitions were rejected. Assailing the petition refusing amendment of the written statement, the Petitioners had moved this Court in W.P.(C) No.31343 of 2011, which was dismissed on 11^th September 2023 for non-prosecution. The petition under Order VIII Rule 6-A CPC under Annexure-1 was dismissed on the ground that when a joint written statement was filed by Defendant Nos.3,4,7 and 9, Defendant No.3(a) and 7- Petitioners could not file a separate counter claim independently. 4. It is his submission that when the counter claim does not take away the pleadings in the written statement and an independent counter claim was maintainable in law, there was no difficulty on the part of learned trial Court to consider the prayer for acceptance of counter claim intended to be filed by the Petitioners. Hence, the impugned order under Annexure-2 is not sustainable and is liable to be set aside. He further prays for a direction to learned trial Court to accept the counter claim intended to be filed by the Petitioners.

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Mr. Swain, learned counsel for the Opposite Party No.7 vehemently objects to the same and submits that the Petitioners could not have filed an independent counter claim when they have filed a written statement jointly. It is further submitted that the petition under Annexure-1 was filed at a time when trial of the suit had already commenced. Thus, learned trial Court has

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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: 21-Mar-2024 17:39:05

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committed no error in dismissing the petition under Annexure-1 vide order under Annexure-2.

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Upon hearing learned counsel for the parties and on perusal of the record, more particularly, the averments made in the writ petition at Paragraphs-5,6 and 7, it is crystal clear that the petition for acceptance of counter claim was filed after settlement of issues. Although it is submitted by learned counsel for the Opposite Party No.7 that the petition for acceptance of counter claim was filed after commencement of trial, but learned counsel for the Petitioners submits that it was filed at a stage when the suit was posted for hearing. From the submission of learned counsel for the parties, it is clear that by the time the petition for acceptance of counter claim was filed, issues were already framed. Thus, the counter claim intended to be filed by Defendant Nos.3(a) and 7 could not have been accepted. It is further made clear that the Defendant Nos.3(a) and 7 could not make out an independent claim in the suit, as they are sailing with Defendant Nos.4 and 9. Thus, learned trial Court has committed no error in dismissing the petition to accept the counter claim.

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