Civil Revision No. 900 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.900 of 2011 (O&M) Date of decision: 01.12.2011 Kharti Lal and others ……Petitioners Versus Smt. Phoolan Rani and others …….Respondents CORAM : HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Anuj Balian, Advocate, for the petitioners. Mr. Arvinder Arora, Advocate, for respondent Nos. 11 and 12. ***** A.N. Jindal, J. This petition has arisen out of the order dated 13.10.2010 passed by the Additional Civil Judge (Senior Division), Naraingarh, allowing the application filed by the plaintiffs-respondents (herein referred as ‘the respondents’) for dismissing the counter claim filed by the defendants-petitioners (herein referred as ‘the petitioners’). Factual background of the case is that originally in a suit for declaration filed by Rajni Rani etc. against Kharaiti Lal etc., they had challenged the decree dated 23.02.1995 suffered by Jetha Ram in favour of defendant Nos. 1 to 3-petitioners. The present petitioners had contested that suit and the trial Court, vide judgment dated 21.09.2002, held the plaintiffs as co-sharers to the extent of 1/4th share. However, that judgment was 1 Civil Revision No. 900 of 2011 (O&M) challenged in an appeal, wherein the Appellate Court came to the conclusion that the said property being owned by deceased Jetha Ram, had to be shared equally between all the legal heirs according to the Hindu Succession Act. Accordingly, all the legal heirs were held entitled to the suit property on the basis of the said judgment passed by the Appellate Court. Therefore, Phoolan Devi wife of Om Parkash daughter of Jetha Ram and others have filed a suit for declaration and permanent injunction, wherein the petitioners had filed the counter claim by setting up a Will dated 18.05.1995 executed by Jetha Ram in favour of the petitioners. The trial Court declined the counter claim on the ground that the petitioners have never claimed rights on the basis of the said Will, therefore, the suit is barred under Order 2 Rule 2 CPC. Having heard the rival contentions, there is no denying a fact that the decree dated 23.02.1995 was challenged by Rajni Rani etc. in the previous suit No. 505 dated 25.05.1995, which was decided on 21.09.2002. The said suit was filed against the petitioners as well as Jetha Ram. The Will dated 18.05.1995 could not be set up at that time, as Jetha Ram was alive and the petitioners could claim their rights on the basis of the Will only after the death of Jetha Ram, as the same was to operate on his death. As such, the suit cannot be said to be barred by Order 2 Rule 2 CPC. If any right had accrued to the petitioners on the basis of the said Will after the death of Jetha Ram, then they could raise the same in the counter claim by setting up the said Will. The trial Court appears to have not properly appreciated the factual position and discarded the counter claim, which was to be adjudicated like a suit and did not deserve to be thrown away merely on the application filed by the respondents. 2 Civil Revision No. 900 of 2011 (O&M) Under these circumstances, this petition is accepted; the impugned order is set aside and the trial Court is directed to proceed in accordance with law. However, the plaintiffs would be at liberty to raise all the pleas against the counter claim, submitted by the petitioners. (A.N.Jindal) December 01, 2011 Judge ajp 3