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Vishwanath Lohia Vs. the Allahabad Bank and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1428 of 1975
Judge
Reported inAIR1979All12
ActsCode of Civil Procedure (CPC) , 1908 - Order 8, Rule 6A - Order 33, Rule 1
AppellantVishwanath Lohia
RespondentThe Allahabad Bank and ors.
Appellant AdvocateV.K. Gupta, Adv.
Respondent AdvocateM.G. Pant, Adv.
DispositionRevision allowed
Excerpt:
.....8 rule 6-a and order 33 rule 1 of code of civil procedure, 1908 - application to sue as pauper in counter claim - counter claim amounts to cross suit - held, court to pronounce final judgment both on original and counter claim. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the.....ordersatish chandra, c.j.1. to a suit the defendant filed a written statement making a counter claim therein. he made an application for permission to sue for counter claim in forma pauperis. this application was directed to be disposed of on may 26, 1975. on may 26, 1975, the court passed an order:'there is a written statement but defendant has also preferred his counter claim. there is no court-fee on the counter claim. hence the counter claim is rejected. let it be treated as written statement only.'2. aggrieved, the defendant has come to this court in revision. order viii, rule 6-a permits a defendant to plead counter claim against the claim of the plaintiff. sub-rule (2) provides that such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce.....
Judgment:
ORDER

Satish Chandra, C.J.

1. To a suit the defendant filed a written statement making a counter claim therein. He made an application for permission to sue for counter claim in forma pauperis. This application was directed to be disposed of on May 26, 1975. On May 26, 1975, the Court passed an order:

'There is a written statement but defendant has also preferred his counter claim. There is no court-fee on the counter claim. Hence the counter claim is rejected. Let it be treated as written statement only.'

2. Aggrieved, the defendant has come to this Court in revision. Order VIII, Rule 6-A permits a defendant to plead counter claim against the claim of the plaintiff. Sub-rule (2) provides that 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. Under Sub-rule (3), the plaintiff is entitled to file a written statement to the counter claim. Order XXXIII Rule 1 of the Civil P. C. provides that any suit may be instituted by an indigent person. Since in view of Rule 6-A (2) a counter claim has been given the same effect as a cross suit, the legal position is that when the defendant filed a written statement making a counter claim he filed a cross suit and so he is well within the purview of Order XXXIII. The defendant was hence entitled to apply for leave under that provision. The court below was bound to consider that application and dispose it of according to law. In failing to do so he had failed to exercise the jurisdiction vested in it.

3. In the result, the revision succeeds and is allowed. The order dated May 26, 1976 is set aside. The court below is directed to dispose of the application for leave to sue in forma pauperis in accordance with law.


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