C.R.No.3009 of 2011(O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3009 of 2011(O&M) Date of decision: 6.5.2011 Rakesh Kumar ….Petitioner Vs. Pawan Kumar and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.S. Budhwar, Advocate for the petitioner. Jaswant Singh, J Plaintiff-petitioner has filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 15.4.2011 (P.5) passed by learned Civil Judge (Jr. Division), Karnal vide which his application filed under Order 8 Rule 6 CPC has been dismissed. Brief facts of the case are that the plaintiff-petitioner filed a civil suit No.823/2009 for permanent injunction restraining the defendants- respondents from breaking down the front gate of his house. During the pendency of the civil suit, counter claim was filed by defendant-respondent No.3 but the same was objected by plaintiff-respondents by filing an application under Order 8 Rule 6 CPC stating that the counter claim be excluded from the written statement. The learned trial Court after hearing both the sides, dismissed the application of the plaintiff-petitioner vide impugned order dated 15.4.2011 (P.5), hence the present petition. Learned counsel for the petitioner argues that learned trial Court has committed a grave error of law while dismissing the application C.R.No.3009 of 2011(O&M) #2# filed by the petitioner under Order 8 Rule 6 CPC. He further argues that defendant-respondent No.3 has no cause of action and if at all, she has any grievance, she can file a separate suit. After hearing learned counsel for the petitioner and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal. Defendant-respondent No.3 filed a counter claim for mandatory injunction by alleging that entry to the main gate of her house has been encroached upon illegally and unauthorisedly by the plaintiff-petitioner. It is further alleged that she is the owner of House No.771, New Prem Nagar, Karnal as per registered sale deed (D.2) and the same is adjoining to the house bearing No.770 of the plaintiff-petitioner, which is owned by his father as they have common wall in between shown in the site plan. It was also alleged that the plaintiff-petitioner as well as defendant-respondent No.1 had illegally and unauthorisedly made a cattle shed in front of their house as well as in front of house of defendant-respondent No.3 on public passage and created nuisance for the general public as well and in this way, her main door entry has been reduced from 12' to 5'. A perusal of the application filed by the plaintiff-petitioner reveals that the suit was filed against the defendant-Pawan Kumar claiming that the defendant wanted to demolish the main gate of the house in question, which come in the part of the plaintiff-petitioner after oral family settlement and the plaintiff is in peaceful possession of the house in dispute. The paper book reveals that initially in the suit, the plaintiff-petitioner had impleaded his brother-Pawan Kumar only as a defendant and it seems that the suit was collusive one in which the interest of defendant-respondent C.R.No.3009 of 2011(O&M) #3# No.3 is prejudiced, who thus got herself impleaded as defendant No.3 by filing an application under Order 1 Rule 10 CPC. Even no site plan was appended with the civil suit by the plaintiff-petitioner. Undisputedly, respondent-defendant No.2/M.C Karnal lodged a criminal complaint against the plaintiff-petitioner and a notice under Section 181 of the Haryana Municipal Act, 1973 had already been issued to the plaintiff-petitioner for removing the alleged cattle shed constructed in front of his house. The site plan placed on record by defendant-respondent No.3 was perused by the learned trial Court, which, prima facie, came to the conclusion that the cattle shed constructed by the plaintiff-petitioner has reduced the entrance to the house of defendant-respondent No.3 from 12' to 5'. Thus, the learned trial Court has rightly come to the conclusion that defendant-respondent No.3 has a cause of action and she has every right to file counter claim against the plaintiff-petitioner as entry to her house has been reduced from 12' to 5'. All the contentions of both the parties will be taken into consideration by the learned trial Court after leading their evidence according to law but the contention of the petitioner that there is no cause of action to file the counter claim by defendant-respondent No.3 is absolutely baseless and needs to be rejected. Keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with the impugned order order dated 15.4.2011 (P.5) passed by learned Civil Judge (Jr. Division), Karnal warranting interference under Article 227 of the Constitution. Dismissed. May 06, 2011 ( JASWANT SINGH ) manoj JUDGE