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W.P.No.2041/10
Smt.Lakshmi Bai Dhaniram and others
31.8.2010
Shri Girish Kekre, Counsel for petitioner.
Shri A.K.Jain, Counsel for respondents No.1 & 2.
This petition is directed against an order dated 21.12.2009
passed by the Additional Judge to the Court of Additional District Judge,
Katni in Civil Suit No.6-A/08 by which the counter claim filed by the
petitioner/defendant was allowed in part. The trial Court permitted the
counter claim against plaintiffs but rejected it against co-defendant.
Learned counsel for petitioner after arguing the case submitted
that he may permitted to withdraw entire counter claim with liberty to file
a fresh suit for the relief prayed in the counter claim so that, there may
not be complication in the matter and the suit filed by the petitioner may
be decided on its own merits. It is further submitted that it may be
observed that the question of limitation shall not come in the way of the
petitioner. This part of the order is opposed by Shri A.K.Jain, learned
counsel appearing for respondents who submitted that the petitioner
may file a fresh suit alongwith application under Section 14 of the
Limitation Act, 1963 which shall be dealt with by the trial Court in
accordance with law. So far as withdrawal of counter claim is
concerned, he has no objection.
Considering the fact that the counter claim filed by the petitioner
was against plaintiffs and also against co-defendant, while no counter
claim is maintainable against co-defendant and in case counter claim is
permitted against plaintiffs and is rejected against co-defendant, it will
split the cause of action. Considering peculiar facts, we permit the
petitioner to withdrawn the counter claim and file a fresh suit alongwith
an application under Section 14 of the Limitation Act. On filing such suit
alongwith an application under section 14 of the Limitation Act, the
Court hearing such suit shall consider the application filed by the
petitioner under section 14 of the Limitation Act sympathetically.
So far as counter claim filed in Civil Suit No.6-A/2008 before the
Additional Judge to the Court of Additional District Judge, Katni is
concerned, petitioner is permitted to withdraw the entire counter claim
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W.P.No.2041/10
Smt.Lakshmi Bai Dhaniram and others
31.8.2010
with the aforesaid liberty and in this regard, order passed by the trial
Court is modified to that extent.
With the aforesaid directions, this petition is disposed of finally.
No order as to costs.
C.C. as per rules.
(Krishn Kumar Lahoti) (S.C.Sinho)
C. Judge Judge
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W.P.No.2041/10
Smt.Lakshmi Bai Dhaniram and others
31.8.2010