Madhya Pradesh High Court
Damoh Magzine Service And Agencies vs Sunil Kumar Agrawal on 18 January, 2016
WP-20318-2015
(DAMOH MAGZINE SERVICE AND AGENCIES Vs SUNIL KUMAR AGRAWAL)
18-01-2016
Mr.Umesh Shrivastava, learned counsel along with Mr.Rajroop
Patel, counsel for the petitioner.
None for the respondents even when the matter is taken up in
second round.
Heard finally.
In this petition, under Article 227 of the Constitution of India, the
petitioner has challenged the validity of the order dated
15.10.2015 passed by the trial Court, by which, the objection
raised by the petitioner with regard to maintainability of the
counter claim has been rejected on the ground that no cause of
action has been disclosed in counter-claim.
Facts giving rise to filing of the writ petition, briefly stated, are
that the petitioner/plaintiff filed the civil suit seeking the relief of cancellation of sale deed dated 04.12.2004 executed by the defendant Nos.1 and 2 in favour of the defendant No.4 as well as permanent injunction on the ground that the plaintiff is in settled possession in disputed part performance of the contract. The defendant No.4 filed a counter-claim in which it was averred that he had purchased the suit property from defendant No.1 vide registered sale deed dated 4.12.2014 and in the counter-claim plaintiff's possession has been admitted, therefore, it is evident that the defendant No.1 is not in possession of the suit property. The petitioner raised an objection with regard to maintainability of the counter-claim, inter-alia, on the ground that the same does not disclose the same. From perusal of Para-27, it is evident that the cause of action has been pleaded. Learned counsel for the petitioner submitted that the trial Court grossly erred in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure and in holding that the cause of action arises in filing the counter-claim.
I have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure, the averment made in the pleadings alone have to be seen. The petitioner has raised an objection that the counter-claim has been filed without accrual of any cause of action. The trial Court has held the cause of action accrues by filing the counter-claim. Therefore, the impugned order, does not suffer from any jurisdictional infirmity nor any error apparent on the face of record warranting interference of this Court in exercise of power under Article 227 of the Constitution of India. Needless to state that the petitioner would be at liberty to raise an objection with regard to maintainability of the counter-claim in the written statement to the counter-claim. In case, such an objection is raised, the same shall be dealt with by the trial Court, in accordance with law.
With the aforesaid directions, the writ petition stands disposed of. C.C. as per rules.
(ALOK ARADHE) JUDGE