IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.246 of 2008 MD. YUNUS Versus ANURADHA DEVI & ORS ----------- For the appellant : Mr. Ray Shvaji Nath, Sr., Adv. M/s Rajesh Sinha, Ray Saurabh Nath & Ritesh Kumar,Advs. For the Respondents: Mr.Shashi Shekhar Dwivedi, Sr.Adv. Mr.Ajit Kumar Singh, Advocate. - - - - - 10. 12.12.2008 This appeal is against the order dated 4th March 2008 of the Sub-ordinate Judge-I, Purnea in T.S.No. 203 of 1995 whereby the prayer of the appellant/defendant No.20 as made under petition for injunction under order XXXIX Rule 1 & 2 C.P.C. for restraining the Defendant no.42 in making any construction over C.S. Plot no.2 under the suit land and as claimed by the defendant no.20 as its owner has been refused. The plaintiff Tej Narayan Sah and others filed T.S.no. 203 of 1995 on 17th July 1995 against the defendants praying for declaration of title and confirmation of possession and in the alternative, recovery of possession over the suit land bearing an area 4 acres and odd decimals on the ground that they (plaintiffs) had purchased the land from descendants of recorded tenant Jay Mangal Lohar and that when he went to take possession of t he land, he found that defendant No. 20, 5 and others were occupying the land on the basis of forged and fabricated sale-deeds in their favour. During hearing, defendant No.20/appellant filed a petition under order XXXIX Rule 1 C.P.C. on 14th January 2008 with a prayer for restraining the defendant no.42 from the land as under the petition. The defendant no.42 had purchased the land from 2 defendant no.5 and was making construction over the portion of the land as mentioned in the petition. The defendant no.20 had taken a plea that he had title and possession over the land as under the petition and that defendant no.5 had no right, title or interest over the same and, thus, defendant no.5 could not have transferred the land to defendant no.42 and, therefore, defendant no.42 did not acquire any right, title or interest over the land. It was after filing of the said petition by defendant no.20 that a Pleader Commissioner was also appointed who submitted his report about some construction having been made on the land under the said injunction petition as filed by the defendant no.20. It is relevant to mention that after filling of the suit in the year 1995 the plaintiffs had filed a petition under Order XXXIX Rule 1 & 2 C.P.C. with a prayer to restrain the defendants from interfering with their peaceful possession over the land. On the filing of that petition vide order dated 18th July 1995, the trial court had passed an order of maintaining status quo by the parties till filing of the show cause by the defendants. In this impugned order dated 4th March 2008, the learned trial court has discussed and decided the matter as follows: “But a certified copy of the order was brought before the court for perusal and it appears from that order that a direction to maintain status quo till filing of show cause had been passed by the court in the year 1995 and further it was also submitted that show cause of some of the defendants had been filed but the petition of injunction was never pressed by the plaintiffs. In my opinion, the said order became anfractuous with the filing of the show cause by some of the 3 defendants of the suit and further the conduct of the plaintiffs as they did not press their injunction petition also show that now there is no effect of the said order of the court.” Thus the court below came to find that the status quo order was passed and it was effective till the filing of show cause and that when some of the defendants had filed their show cause reply and the plaintiffs also did not press the petition from the year 1995 till 2008 when the impugned order was passed, the order of maintaining status quo had not remained effective and it had lost its effect, rather it had become nonest. During hearing, a question was raised by the learned counsel for the respondents/defendant no.42 that in this case the appellant/ defendant no.20 who himself is a defendant in the suit cannot raise any question of title in his favour and any such claim against other defendants particularly defendant no.42 for the purpose of creating a basis for making a prayer for grant of injunction in his favour and against defendant no.42. It was argued that the appellant/defendant no.20 could have raised a question of his title over any portion of the suit under a counter-claim under order VIII Rule 6(A) C.P.C., but that could be against the plaintiff only. It was also submitted that there is no provision under law to make a counter-claim by one defendant against another set of defendant in a suit filed by another plaintiff who has filed his suit for claim against all the defendants. Rule 6A of Order VIII of the C.P.C. reads as follows: Rule-6-A. Counter-claim by defendant. ---(1) A defendant in a suit may, in addition to his right of pleading a 4 set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not; Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3)The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaintiffs.” Thus, on hearing the learned counsel for the respondents and on perusal of the provisions particularly under Clause-1, Rule CA, as above, it appears that counter claim can be raised by defendant against the plaintiff only and that in a suit, the defendant is not entitled to raise any counter-claim against a co- defendant. In the case of Rohit Singh and others Vs. State of Bihar (now State of Jharkhand) and others reported in 2007(1) PLJR (SC) 232, the Apex Court has also held that a counter-claim though based on different cause of action than one put in suit by the plaintiff could be made, but it has necessarily to be directed against the plaintiffs, though incidentally or along with it, it may also claim 5 relief against co-defendant in the suit, but a counter claim directed solely against co-defendant cannot be maintained. In the instant case, the plaintiff has filed the suit claiming his title over the suit land against all the defendants. The defendant No.20appellant has not raised any counter- claim of title against the plaintiff, but he has filed a petition for restraining the defendant no.42 over a portion of suit land as claimed by him under his petition on the ground that he has title over the land and that defendant no.42 had no title to the land hence, he should be restrained from making any construction over the land. The very basis of the claim of injunction as raised by the defendant no.20/appellant is the claim of his title over the land as against the defendant no.42. Technically, the defendant no.20 appellant cannot raise a claim of title in the suit as against defendant no.42 in the instant suit filed by the plaintiff against all the defendants. Therefore, the very basis of claim of title on the ground of which injunction has been prayed goes away. Therefore, defendant no.20/plaintiff in the instant suit has no right to file a petition for injunction against defendant no.42. During hearing, learned counsel for the appellant raised the question that initially on the petition of plaintiff dated 18th July 1995 the trial court had already passed an order for maintaining status quo by the parties with respect to the suit land. It was further submitted that since the status quo order was there, therefore, the parties, including the plaintiffs and all the defendants were bound to maintain status quo with respect to the suit land and that when the 6 defendant no.42 started making construction over a portion of the suit land over which defendant no.20 is claiming his right, there was violation of status quo order and thus, in such situations, defendant no.20 is justified in making a prayer for restraining the defendant no.42 from making construction over the land. But this aspect of the submissions of the learned counsel for the appellant has been well replied by the learned trial court itself in the impugned order, as quoted above wherein the trial court has mentioned that the status quo order was passed for the period till the filing of the show cause by the parties and that many of the defendants had already filed their show cause reply and from 1995 to 2008 when the impugned order was passed the plaintiff had not pressed the injunction petition, therefore, status quo order had ceased to have any effect. Thus the very defence of status quo order is also not available to the appellants. Thus hearing both sides, I find that there was no basis for making any prayer for injunction as made by the defendant no.20/plaintiff. In such view of the matters, the learned trial court rightly refused the prayer. There is no scope for making any interference. The appeal is, accordingly, dismissed. Jay/ ( C. M. Prasad, J .)