PALNITKAR V.V. (Lawyer) 26 December 2008

what happens to the counter claim

plaintiff filed a suit against 9 defendants for partition. Def no. 9 appeared first and filed counter claim stating that partition had taken place and he is in possession of his half share. He prayed for relief of declaration of his title to the extent of his 1/2 share and for injunction to restrain plaintiff from causing dispossession. Remaining defendants appeared subsequently. They asserted prior partition but denied that defendant no. 9 got half share. According to them, def. no. 9 got only 1/3 rd share. They asserted that Def. 1 to 8[together] , plaintiff and Def. no. 9 have 1/3rd share and that they are in possessin of their 1/3 rd share. Thus, Def. No. 1 to 8 resisted the claims made by the plaintiff as well as def. no. 9. Plaintiff died in the mean time. His LRs were not brought on record. Will the counter claim made by def. no.9 survive as the defendants 1 to 9 resisted it?

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9 Replies

anonymus (confidential) 26 December 2008

dear professor sir,

the suit even if dismissed for default for non impleading of lr's the counter claim must be taken as suit and given a new suit number and must be tried as a suit. this proposition has been laid down in a decision of our Mad HC. As i am out of my place at present i could not give u the reference immediatly. I would give the authority as soon as i reach my place.

ASHOK BOGHANI (Lawyer) 27 December 2008

For all purposes, under C.P.C. the Counter claim is and is to be treated as a suit by the Defendant. Therefore even if the suit is dismissed, the Counter Claim stands and will be decided as tough the same is a suit filed by the Defendant.

PALNITKAR V.V. (Lawyer) 28 December 2008

can the counter claim proceed against a dead person, I have clearly mentioned that plaintiff is dead and his LRs are not brought on record. I have also clearly mentioned that there is contest between defendants inter se.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 07 January 2009

I do agree with Mr. Mehbub

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 07 January 2009

I do agree with Mr. Mehbub

PALNITKAR V.V. (Lawyer) 07 January 2009

Perhaps there is some confusion. I dont dispute that the counter claim is to be treated as a suit. The question is whether it continues (between defendants inter se) if the original plaintiff dies and his LRs are not brought on record ? Can a counter claim be filed by one defendant against co-defendant?

anonymus (confidential) 08 January 2009

well, since the suit is for partition even the defendants have to be treated as plaintiffs. so, when the counter claim is numbered as a suit then obviously it is maintainable other defendants. this is applicable for partition suits and not in general. IN GENERAL COUNTER CLAIM SHALL BE MADE ONLY AGAINST THE PLAINTIFF.

PALNITKAR V.V. (Lawyer) 14 January 2009

Mr. Mehbub, I have already mentioned that the defendant no. 9 has asserted that partition had already taken place and that he is in possession of his 1/2 share. Other defendants claim admit that partition had already taken place but deny that def. no. 9 is in possession of 1/2 share. How this can be treated as suit for partition.

Jamai Of Law (propra) 12 December 2010

If there is no explicit counter-claim by the defendent but explicit set-off is pleaded with material supporting evidence,

.......if the suit gets dismissed for plaintiff's default ..

Shouldn't the defendent's plea of set-off (as a kind of counter claim) be taken as a new suit? .........................

and suit be disposed according...............so that even if plaintiff attempts to reinstitute the case, it is liable to get rejected unless new grounds are availed.