Posted On by &filed under High Court, Punjab-Haryana High Court.


Punjab-Haryana High Court
Sarabjit Singh Bassi vs Santokh Singh on 27 September, 2000
Author: B Kaur
Bench: B Kaur


JUDGMENT

Bakhshish Kaur, J.

1. This revision petition is directed against the order dated August 5, 1999 by which the application under Section 151 CPC filed by the defendant-respondents for restoration of the counter-claim was allowed.

2. The brief facts of the case are that Ujjagar Singh, now represented by his legal representatives, filed a suit for declaration that he is owner to the extent of 1/2 share of electric tubewell installed in the land in the area of Village Bundala. As per order dated 12.2.1999 he along with defendant No. 1 – Santokh Singh is using electric connection and paying the electricity bills alternatively. The defendant nut only resisted the suit by way of filing the written statement but also filed counter-claim for the recovery of Rs. three lakhs from the plaintiff through his counsel Shri Mohal Lal, Advocate, Phillaur on 7.5.1996. Replication to the counter-claim was filed.

3. On 6.8.1997 in the absence of the defendant, Mohan Lal, Advocate, made a statement that he withdraws the counter claim. The defendant alleges that the Advocate could not make the statement without getting instructions from them. In fact, he never intended to withdraw the counter claim. Rather, stamp papers worth Rs. 5275/- were purchased for the purpose of affixing court tee on the counter claim. Thus, on these grounds, the application for restoration of the counterclaim was filed by the defendant.

4. The plaintiff, now petitioner, resisted the application on the plea that the counter claim has become time barred. Numerous opportunities were allowed to the defendant to pay the court fee, but he failed to do so and for that reason, the counter claim was withdrawn. The counter claim is based on agreement dated 12.2.1995 and it cannot be revived by this application.

Annexure P-1 is copy of the statement made by Shri Mohan Lal, Advocate. It reads as under :-

“Statement of Mohan Lal, counsel for the defendant :-

” I have no objection if L.R.’S application is allowed and I withdraw the counter claim at this stage,

6.8.97″

5. On the basis of this statement, the impugned order Annexure P-2 was passed by the trial Court and the case was adjourned for 4.9.1997 for filing of the amended plaint.

6. The application for setting aside the order Annexure P-2 dated 6.9.1997 and for restoration of the counter claim was filed by defendants nearly after 1 year, 2 months and a few days. It is averred that they came to know about the withdrawal of counter claim only on 23,11.1998.

7. The proceedings in the suit had been continuing for nearly one year and it is not believable that the defendant never knew about the fate his case claim. It is apparent from the order that the requisite fee on the counter claim was not filed by the defendants and they had been getting dates for doing the needful. The trial Court has made reference to certain stamp papers produced before him during the course of arguments in re-spects of another suit No. 92 of 1997 pending between the parties and observed that those stamp papers were lying in the brief of the counsel and that he has not disclosed to the party in which case the stamp papers were to be used. The stamp papers bear the date 9.4.1997, meaning thereby that it was purchased before filing the written statement. The written statement was filed on 7.5.1996. Court fee was affixed on the counter claim. If it was already purchased by the party, then why he had been getting adjournments for doing the needful. The documents placed in another file cannot be looked into unless these are proved, nor any notice can be taken of these documents which were produced by the counsel all of a sudden and that too during the course of arguments. An irresistible conclusion can he easily drawn in the facts and circumstances of the case that the defendants had failed to pay the court fee on the counter claim for a sufficient long period and for that reason, the counsel made the statement that he withdraws the counter claim. The respondents conduct does not entitle them to the grant of discretionary relief in their favour by exercising the inherent powers under Section 151 of the Code. The argument of the defendant that he came to know about the passing of the order of 6.9.1997 only on 23.11.1998 is nothing less but an excuse invented by him to support his claim for restoration of the counter claim.

8. In view of the aforesaid, this revision petition is allowed and the impugned order is set aside. The counter-claim set up by the defendant be not looked into by the trial court for the purpose of decision in the
suit.

9. Revision allowed.


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