Rohit Singh & Ors vs State Of Bihar (Now State Of Jharkhand) & ...

2. Respondent No. 6 herein as the Plaintiff filed a suit T.S. No. 9 of 1996 for a declaration of his title to the suit property, for confirmation of his possession over it and if it were to be found that the plaintiff had been dispossessed from the plaint schedule property during the pendency of the suit, for the grant of a decree for recovery of possession through the process of court, for a perpetual injunction restraining the defendants from interfering with his peaceful possession of the plaint schedule property and for other incidental reliefs. The suit was filed against two defendants; the Divisional Forest Officer and the State of Bihar, who are respondents 1 and 2 herein. Defendants 1 and 2 filed a written statement denying the claim of title and possession by the plaintiff. They pleaded that the property was vested forest having been notified as such under Section 29 of the Forest Act, 1927, which remained vested in the State; that the plaintiff had no cause of action and that the suit was not maintainable for want of notice under Section 80 of the Code of Civil Procedure. The suit went to trial. Evidence was closed. Arguments concluded. Judgement was reserved.

2. At that stage, certain third parties who are the appellants herein, filed an application under Order I Rule 10(2) of the Code of Civil Procedure claiming that they are in possession of properties including the suit property as owners and that they have right, title, interest and khas possession over the suit land. They submitted that their presence before the court was necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. It is to be noted that there was no allegation that the plaintiff was attempting to interfere with their right or possession. It was only stated that they had come to know that the plaintiff had filed a suit based on some illegal and invalid documents and was proceeding with the suit speedily without impleading them. The said application was allowed by the trial court. The impleaded parties were ranked as defendants 3 to 17 in the suit.

5. Again, after some delay and after the suit had gone on, an application was made on behalf of defendants 12 to 17 seeking an amendment of the written statement earlier filed and adding a sentence at the end of paragraph 16 reiterating their claim of acquisition of title based on long and uninterrupted possession. This amendment was allowed by the trial court. We think that it will be useful to quote paragraph 16 of the written statement as amended.

15. After this, the witnesses of the plaintiff were recalled and permitted to be cross-examined by these defendants. That was on 5.10.1996. Again the witnesses for defendants 1 and 2, were recalled and they were permitted to be cross- examined on behalf of these defendants. The evidence on the side of defendants 3 to 17 was let in. It commenced on 24.2.1997 and was closed on 30.1.1997. Thereafter arguments were heard again and the arguments on the side of the defendants including that of defendants 3 to 17 were concluded on 4.3.1997. The suit was adjourned for arguments on the side of the plaintiff. On 5.3.1997, the suit was dismissed for default of the plaintiff. It was then restored on 29.5.1998. It was thereafter on 5.6.1998, that defendants 3 to 17 filed an application for amending the written statement. The amendment was allowed on 20.7.1998. There was no order treating the amended written statement as a counter-claim or directing either the plaintiff or defendants 1 and 2 to file a written statement or an answer thereto. Defendants 3 to 17 had questioned the pecuniary jurisdiction of the trial court in their written statement. That plea was permitted to be withdrawn on 4.2.1999. It is clear that after the evidence was closed, there was no occasion for impleading the interveners. Even assuming that they were properly impleaded, after they had filed their written statement, the suit had gone for further trial and further evidence including that of the interveners had been taken, the evidence again closed and even arguments on the side of the interveners had been concluded. The suit itself was dismissed for default only because on behalf of the plaintiff there was a failure to address arguments. But the suit was subsequently restored. At that stage no counter-claim could be entertained at the instance of the interveners. A counter-claim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counter-claim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so called counter-claim of defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. On that short ground the counter- claim so called, filed by defendants 3 to 17 has to be held to be not maintainable.

are of no avail to defendants 3 to 17 on the facts and in the circumstances of this case. In the reported decision, this Court did not have to consider whether a counter-claim can be filed after the trial is concluded and whether it could be solely directed against a co-defendant. The Court was also not dealing with an inchoate counter-claim in that case.

23. In this view, even while dismissing the appeal filed by defendants 3 to 17, and upholding the decision vacating the decree on the counter-claim, we set aside the order of remand passed by the High Court and pass a decree confirming the dismissal of the suit filed by the plaintiff and holding that there was no valid or tenable counter-claim which could be entertained in the present suit. Defendants 1 and 2 would be entitled to their costs in the courts below from defendants 3 to 17 and the parties are left to bear their respective costs in this Court.