Mithilesh Sharda Vs Jeevan Kumar and Others

The present revision petition has been preferred under Article 227 of the Constitution of India challenging the impugned order dated 01.03.2024 whereby the application filed by the plaintiff-petitioner under Order 8 Rule 6-C of the Code of Civil Procedure, 1908 (CPC) for exclusion of counterclaim has been dismissed.

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Brief facts relevant to the present lis are that the plaintiffpetitioner herein filed a suit under Section 38 of the Specific Relief Act, 1963 for grant of decree of permanent injunction restraining the defendantrespondents either themselves or through anybody in any way interfering into use, enjoyment and peaceful possession of the plaintiff-petitioner over the suit property i.e. a common vehra fully described in the plaint and further from damaging the drain on Western side abutting to the residence of the plaintiffpetitioner as also from in any way blocking or closing the ventilators opening in the vehra which were providing light and air to the house of the plaintiff-

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Yogesh Sharma 2025.08.25 10:10 I attest to the accuracy and authenticity of this judgment/order. Chandigarh

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CR-2293-2024 (O&M)

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petitioner and from encroaching upon the common vehra by raising any construction and covering the portion at point ABCD. Further suit was also under Section 39 of the Specific Relief Act, 1963 for grant of decree of mandatory injunction for removing construction obstructions/Malba of the defendant-respondents if they succeed in raising the construction. The defendant-respondents filed their written statement-cum-counter claim. Prayer in their counter claim was for grant of decree for mandatory injunction directing the plaintiff-petitioner to remove by demolishing all illegal encroachment, obstruction and construction of his house No.2637 from common vehra thereby restoring the position of common vehra. Replication was filed to the written statement and the written statement to the counter claim was also filed. An application was thereafter filed under Order 8 Rule 6-C of CPC for exclusion of counter claim. Reply was filed to the said application and vide the impugned order dated 01.03.2024 the said application was dismissed. Aggrieved by the same, the present petition has been filed.

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Learned counsel for the plaintiff-petitioner would contend that the counter claim would have to be excluded inasmuch as the cause of action is totally different from the cause of action raised in the plaint. Learned counsel would further contend that for the prayer made in the counter claim, a separate suit would have to be preferred by the defendant-respondents which would have to be independently decided and that the Municipal Committee would be a necessary party.

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Per contra learned counsel for the defendant-respondents would contend that the dispute admittedly relates to a common vehra. The plaintiff-petitioner has also filed a suit qua the common vehra and the prayer made by the defendant-respondents in the counter claim is also qua the said vehra , therefore, the same cannot be decided separately. It is further the

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Yogesh Sharma 2025.08.25 10:10 I attest to the accuracy and authenticity of this judgment/order. Chandigarh

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CR-2293-2024 (O&M)

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contention that merely because the Municipal Committee is a necessary party would not be a ground for exclusion of the counter claim.

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I have heard the learned counsel for the parties.

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In the present case, prayer in the suit is that the defendantrespondents be injuncted from restraining the plaintiff-petitioner from enjoying the common vehra as also from restraining them from encroaching or carrying out any construction over the common vehra . Admittedly, there is a common vehra for three houses. The fact that vehra is common to all the parties has not been disputed by the plaintiff-petitioner, rather it is his own case that it is a common area which has been enjoyed by all three houses. Prayer in the counter claim is also qua the same vehra wherein it has been alleged that the plaintiff-petitioner himself has carried out certain illegal constructions, thus, encroaching upon the common vehra. The issue in dispute is qua the same property and there is no reason why the application under Order 8 Rule 6 (c) of CPC ought to be allowed. Learned counsel for the plaintiff-petitioner has not been able to show as to why the prayers in the plaint and the counter claim are different or pertained to different properties.

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In view of the above, I do not find any illegality or infirmity in the impugned order dated 01.03.2024. The present revision petition being devoid of any merit is accordingly dismissed. Pending applications, if any, also stand disposed off.

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It is made clear that any observation made herein shall not be treated as an expression of opinion on the merits of the case.

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22.08.2025 ( ALKA SARIN ) Yogesh Sharma JUDGE

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NOTE: Whether speaking/non-speaking: Speaking^{Whether reportable: YES/NO}

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Yogesh Sharma 2025.08.25 10:10 I attest to the accuracy and authenticity of this judgment/order. Chandigarh

Mithilesh Sharda v. Jeevan Kumar and Others

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Mithilesh Sharda v. Jeevan Kumar and Others

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