IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13644 of 2010 1. BIBI ZULEKHA KHATOON W/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 2. MD. JAHANGIR ALAM S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 3. ALAMGIR MINOR S/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HIS NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 4. SAHEBGIR ALAM MINOR S/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HIS NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 5. TAUHID ALAM MINOR S/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HIS NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 6. NAZNEEN BEGUM MINOR D/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HER NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 7. SAHNAZ BEGUM MINOR D/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HER NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 8. SAHZADI PRAVEEN @ CHANDI MINOR D/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HER NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 9. SAHANI PRAVEEN @ RAUSHANI MINOR D/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF HER NATURAL MOTHER BIBI ZULEKHA KHATOON R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA.…….DEFENDANTS 1ST PARTY-PETITIONERS. VERSUS 1. BIBI SABRA KHATOON W/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 2. GHULAM MOHAMMAD S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 3. GHULAM ZILANI S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 4. GHULAM HAIDER S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA - 2 - 5. GHULAM AKBAR S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 6. GHULAM SARWAR S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 7. GHULAM NABI S/O LATE ABDUL WAHID ALAM R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA…….PLAINTIFFS-RESPONDENT 1ST PARTIES 8. BIBI SAKINA W/O LATE ABDUL WAHID ALAM R/O MOHALLA AND P.O.- LAL BAGH, P.S.- TOWN, DISTT.- DARBHANGA 9. GHULAM MUSTAFA S/O LATE ABDUL WAHID ALAM, R/O FRAZER ROAD, NAWAB SAHEB KOTHI, NEAR MAURYA CLUB, P.O.- G.P.O., P.S. TOWN, DISTT.- PATNA 10. UMNE KAUSER D/O LATE ABDUL WAHID ALAM, W/O SAHID R/O PARIHAR BAZAR, P.O. AND P.S.- PARIHAR, DISTT.- BEGUSARAI…..DEFENDANTS 2ND PARTY- RESPONDENT 2ND PARTIES. 11. UMME SALMA D/O LATE ABDUL WAHID ALAM, W/O ABDUL MALIK R/O A-1032/6, T.B. NAGAR, KARAILI SAHME, ALLAHABAD (U.P.) 12. UMME HALIMA D/O LATE ABDUL WAHID ALAM, W/O MOHAMMAD SHAMIM R/O SHAHPURPATTI, P.O. SHAHPURPATTI, P.S. ARRAH, DISTT.- BHOJPUR 13. UMME SAHIBA W/O MOHAMMAD SABBIR HUSSAIN, R/O SHANKARPUR ROAD, P.O. AND P.S.- DIGHWARA, DISTT.- SARAN (CHAPRA) 14. UMME ZULEKHA W/O NURUL HODA, R/O MOHALLA AND P.O.- MAULESHWARI CHOWK, P.S. TOWN, DISTT.- SIWAN 15. UMME SAIDA MINOR D/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF BIBI SABRA KHATOON, HER MOTHER AND NATURAL GUARDIAN, R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA 16. UMME WAJDA MINOR D/O LATE ABDUL WAHID ALAM, UNDER THE GUARDIANSHIP OF BIBI SABRA KHATOON, HER MOTHER AND NATURAL GUARDIAN, R/O MOHALLA- LALBAGH, P.O. LALBAGH, P.S.- TOWN, DISTT.- DARBHANGA. ……DEFENDANTS 3RD PARTY-RESPONDENTS 3RD PARTIES. For the petitioners : Mr. Sukumar Sinha, Sr. Advocate with Mr. Abinash Kumar, Advocate. For the respondents : Mr. Tarun Kr. Mandal, Advocate. ----------- - 3 - 03/ 27.10.2010 Heard learned counsel for the petitioners and learned counsel for the respondents. 2. This writ petition has been filed by the petitioners challenging order dated 09.04.2010 by which Subordinate Judge-IV, Darbhanga rejected counter claim filed by defendants 1st party- petitioners in Partition Suit No.80 of 1995. The ground for rejecting the said counter claim was that the defendants had filed an application regarding counter claim after about ten years of the filing of their written statement and hence it was belated. 3. No doubt the aforesaid partition suit was filed in the year 1995 in which defendants 1st party-petitioners filed written statement within time on 21.12.1999 and thereafter issues were framed and evidence of the plaintiffs was started and was closed. But it is an admitted fact that the evidence of defendants 1st party had not yet started and in the meantime defendants 1st party- petitioners filed an application of counter claim on 29.05.2009. From the impugned order itself it is quite apparent that in the written statement objection had been raised with respect to the same properties which are subject matter of the counter claim. 4. The law, namely, Rule 6-A of Order VIII of the Code of Civil Procedure is very clear in this regard that such counter claim can be raised before the defendant has delivered his defence or before the time limited for delivering his defence has expired. In the instant case admittedly the evidence of defendants 1st party has not started nor any time for such purpose had expired before filing of the application of counter claim. Although the application of counter - 4 - claim was filed after ten years of filing of the written statement, but even then it was not barred under the aforesaid provisions of law, as defendants 1st party had not yet started their evidence. Thus it is quite apparent that the court below has misconstrued the provisions of law and has wrongly rejected the application of counter claim of defendants 1st party-petitioners. 5. In the said circumstances, this writ petition is allowed, the impugned order is set aside and the court below is directed to allow the counter claim raised by the petitioners on 29.05.2009 and allow them to lead evidence as per the said counter claim. The plaintiffs will also be at liberty to submit their pleadings and evidence in rebuttal of the counter claim of defendants 1st party- petitioners. Harish (S.N. Hussain, J.)