IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10769 of 2011 M/S Sheo Bhagwan Mohan Lal(Hardware)& Ors Versus Indian Potash Limited ---------------------------------- 10. 22.11.2011 Heard the learned counsel for the petitioner. This writ application under Article 227 of the Constitution of India has been filed by the defendants-petitioners against the order dated 14.06.2006 passed in money suit No.80 of 1998 by Sub Judge IIIrd, Patna whereby the Court below refused to recall the order dated 21.02.2003 by which the direction of the Court below to pay court fee of RS.50,000/- on the counter claim filed by the petitioner has been rejected. It appears that the money suit was filed by the plaintiff-respondent being money suit No.80 of 1998. The petitioner filed written statement and also counter claim under Order 8 Rule 6 A of the Code of Civil Procedure. The learned Court below directed the petitioner to pay Rs.50,000/- as court fee on the counter claim. That order was not complied with and the court fee was not paid. Accordingly, counter claim was rejected on 21.02.2003. After two years, application has been - 2 - filed for recall of the same. Order 8 Rule 6A provides for filing of counter claim. Sub-Rule 4 of Order 8 Rule 6A provides that the counter claim shall be treated as a plaint and governed by the rules applicable to plaint. In sub-Rule 3 of Rule 6A of Order 8 provides that the plaintiff shall be at liberty to file written statement in answer to the counter claim of the defendant within such period as may be fixed by the Court. Now, therefore, for all purposes counter claim has to be treated as plaint, so far the defendant is concerned and so far plaintiff is concerned, he has the right to file written statement, so, he will be defendant. Order 7 Rule 11 of the Code of Civil Procedure relates to rejection of plaint, therefore, it will be applicable regarding the rejection of counter claim as provided under Order 8 Rule 6 A sub-Rule 4. Order 7 Rule 11(c) reads as follows : “Whether the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;’ As stated above so far the counter claim is concerned, the defendant is the plaintiff and the counter claim is the plaint. Now, therefore, the - 3 - plaint (counter claim) has been rejected under Order 7 Rule 11 clause (C). In view of the definition of decree as provided under Section 2 sub-Section 2 C.P.C. rejection of plaint is decree. In view of order 6 Rule 4, therefore, the rejection of the counter claim will be deemed decree, i.e., the rejection of the plaint of the petitioner. In my opinion, therefore, appeal under Section 96 was maintainable but the petitioner never filed any appeal against the said deemed decree. The application filed by the petitioner before the Court below to recall of deemed decree was itself not maintainable because the same has been filed after two years and there is no provision under the Code of Civil Procedure for recall of the decree. In such view of the matter, I find no merit in this writ application and accordingly, it is dismissed. Sanjeev/- (Mungeshwar Sahoo, J.)