JUDGMENT
P.K. Deb, J.
1. This appeal has been preferred against the judgment and decree dated 9th August, 1983 passed by the IVth Additional Subordinate Judge, Ranch! in Partition Suit No. 13/17 of 1978-82 by which the respondent Nos. 1 (a) to 1 (d) 5 counter claim has been allowed ex parte while dismissing the plaintiffs-appellants’ suit for partition.
2. A short point is involved in this First Appeal. Plaintiffs filed the suit being Partition Suit No. 13/17 of 1978-82 for getting partition of their 14 Annas Share in the Municipal Survey Plot No. 1701 having Municipal Holding No. 825 New and 1255 old situated in Ward No. III within the Ranchi Municipality. The description of the property in detail were given in the Schedule B of the plaint. In the plaint, the title of the plaintiffs added with their predecessor has been traced out. I am not going into those matters of tracing out of title etc. as the matter is only in respect of counter claim being allowed by the impugned judgment.
3. The respondents 1(a) to 1(d) were the heirs of original defendant No. 1. They contested the suit by filing written statement denying the title of the plaintiffs over the suit land as contained in Schedule-B of the plaint. On denial of the same they have also set up a counter claim in respect of their three annas and odd share in respect of the property mentioned in Appendix I to the written statement. In the Appendix of the written statement, properties have been described by boundary alone without the specifications of the holding number etc. But, it appears that Appendix I property is different from the property for which partition have been sought for as per Schedule B of the plaint by the plaintiffs. The suit proceeded and different witnesses from the side of the plaintiffs and defendants were being examined. At the time of examination of DW-10, the learned Counsel for the plaintiffs in the lower Court wanted to put question on the counter claim as made in the written statement but the same was disallowed by the leaned Subordinate Judge and passed an order on 29.8.1980 in which it was stated that as the plaintiffs failed to file any written statement on the counter claim made by the defendants, the plaintiffs have got no right to challenges the counter claim. Against that order dated 29.8.1980, the plaintiffs came over before this Court in Civil Revision being Civil Revision No. 432 of 1980 (R) but ultimately that Civil Revision was allowed to be with drawn with the following observation-
Learned Counsel for the petitioner wants to withdraw this petition. Prayer is allowed. The application is dismissed as withdrawn with the observation that in the event if judgment goes against the petitioner-plaintiff with regard to those property which defendant-opposite party have asserted in their written statement to be joint, the petitioner will be entitled to challenge the impugned order in the appellant Court if they prefer any appeal against the Judgment.
4. It appears from the impugned judgment and also from the order-sheet of the Court below that the plaintiffs did not pursue their suit henceforth and contesting defendants had adduced evidence in support of their claims made in the written statement and those evidence were recorded ex parte and on the basis of that ex parte evidence by the impugned judgment and decree the learned Court below has allowed the defendants’ counter claim and dismissed the plaintiffs’ suit for partition.
5. In the appeal regarding dismissal of the plaintiffs’ suit regarding partition had not been challenged. Only challenge is in respect of allowance of counter claim ex-parte. With regard to the prayer for partition of the plaintiffs, it is submitted that when the plaintiffs had not pursued their suit for partition, it ought to have been dismissed for non-prosecution and not on merit and practically on merit also the plaintiffs’ partition suit had also been decided.
6. It appears that when the defendant had put a claim of three annas and odd share in respect of property as mentioned in Appendix-I to the written statement the same was never construed as counter claim at any point of time. It was mentioned as counter claim only in the order dated 29.8.1980.
7. Mr. N.K. Prasad, senior counsel appearing on behalf of the appellants submits that when in the suit a counter claim has been set up by the defendants then such counter claim as per Order VIII, Rule 6-A of the C.P.C. should be construed as plaint and an opportunity ought to have been given to the plaintiffs to file written statement. Nowhere in the order sheet any such order is there by which the plaintiffs had been allowed time to file written statement in respect of counter claim.
8. I have already mentioned that the matter of counter claim was not construed earlier to the order dated 29.8.1980 passed by the learned Subordinate Judge. It remained as it was. Definitely, the plaintiffs have also got laches when they got the copy of the written statement they could file a petition that a counter claim had been set up from the side of the contesting defendants and in that case it was their bounden duty either to file written statement or pray before the Court for allowing them time to file written statement.
9. In this connection, Sub-rule (3) of Rule 6-A of Order VIII of the Code of Civil Procedure may be referred to. it was enumerated as such-
The plaintiffs shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the Court.
10. From the wordings put by Legislature, it becomes obvious that the Court has also got the duty to fix time for filing of written statement by the plaintiff against counter claim. So, only the laches on the part of the plaintiff in not filing written statement cannot be legally construed for proceeding the counter claim ex-parte.
11. In a partition suit, practically there remains no plaintiff of defendant. Partition is being sought between the co-sharers. When a partition suit is filed by plaintiff the defendant has also got right to claim for partition of his or her share and such claim is never construed as a counter claim. But, in the present case, from the description of the schedule of the written statement and the plaint, it could be found that the contesting defendants had set up a counter claim in respect of a different property than what had been sough of partition by the plaintiffs. In that case, such counter claim cannot be construed as a claim of partition of share in a partition suit by the defendants and when a counter claim has been set up, it is being construed as a plaint and the plaintiffs have got right to contest the same. Without being given any opportunity to the plaintiffs to file written statement against a counter claim at a later stage it was not befitted of the Subordinate Judge to disallow them to put question on the counter claim. It further appears from the records of the Court below that nowhere issues were” framed. In a partition suit, although a written statements have been filed in details regarding the claim of the plaintiff in partition. Even in respect of counter claim also no issues were framed. Only at the time of writing the judgment, the Subordinate Judge has framed points for decision as is done in writing judgment of criminal cases, which shows that the learned Court below has given go bye to the procedure enumerated under the Civil Procedure Code. When a counter claim has been filed, it was the bounden duty of the Court to register the same as a counter claim and then allow the plaintiffs to file written statement, as already mentioned above. But, such opportunity was never given. The order dated 29.8.1980 is definitely illegal when earlier no opportunity has been given to the plaintiff to file written statement against counter claim.
The plaintiffs might have given up pursuing their suit for partition but they have got the right to contest the counter claim as set up by the defendants and the Court should give an opportunity to file written statement by the plaintiffs against the counter claim being set up by contesting defendant Nos. 1(a) to 1(d).
12. The impugned judgment and decree being illegal on the face of it, the same is hereby set aside and the whole case is sent back on remand to the learned Court below to proceed according to law.
13. Here, before this Appellate Court, although different lawyers were found to have appeared by filing Vakalatnama but except Mr. C.S. Prasad, who sails on the same boat as that of the plaintiffs-appellants, none had appeared. In that view of the matter, the learned Court below is hereby directed that on receipt of the records should give notice to the contesting defendants and the plaintiffs-appellants are hereby directed to appear before the Court below on 25th of September, 1998. The learned Subordinate Judge is hereby directed to proceed according to the law in compliance of the observations and discussions made above.
Send down the records of the lower Court in the Court below immediately.