Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Amendment of Pleading 1908 Code of Civil Procedure CPC Counter claim |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Civil Procedure-Amendment of Pleadings -Suit for decree on settled accounts -Counter-claim made in written statement-Court-fee paid as on plaint- Court if can treat counter-claim as plaint in cross-suit -Amendment when to be refused or allowed -Plaint in cross-suit when should be treated as having been filed-Liability of surviving partner-Goodwill of a firm- Exercise of discretion by trial court, when can be interfered with- Constitution of India Art. 136-Partnership Act. 1932 (9 of 1932) s. 37- Code of Civil Procedure, 1908 (Act 5 of 1908) 0. 6, r. 17, 0. 8, r. 6 The appellant filed a suit for the enforcement of an agreement to the effect that a partnership between himself and one Bai Itcha since deceased had been dissolved and that the partners had arrived at a specific amount to be paid by the appellant in full satisfaction of the share of Bai Itcha in the partnership. The respondents who were the heirs of Bai ltcha, not only denied the allegations in the plaint but also made a counter-claim in the written 1tatement for the rendition of account against the appellant and paid court fee on the counter-claim as on a plaint. At a later stage, the respondents made a prayer to treat the counterclaim as a plaint in a cross-suit. The trial court dismissed the suit on the ground that appellant had failed to prove the agreement. The counter-claim was also dismissed on the ground that it did not lie and the prayer of the respondents to treat the counter-claim as a plaint in a cross-suit was also rejected, the respondents being asked to seek their relief by filing a fresh suit. The respondents appealed against the order of the trial court but their appeal was dismissed. However, the High Court accepted their appeal and set aside the dismissal of the counter-claim and remanded the case to the trial court with a direction that the countcr-claim be treated as a plaint in the cross-suit and the reply of the plaintiff to the counter-claim be treated as a written statement to the cross-suit and the cross-suit be tried and disposed of in accordance with law. The appellant came to this Court by special leave. |
Judge | Honble Mr. Justice A.K. Sarkar Hon'ble Mr. Justice N. Rajagopala Ayyangar |
Neutral Citation | 1963 INSC 74 |
Petitioner | Laxmidas Dahyabhai Kabarwala |
Respondent | Nanabhai Chunilal Kabarwala And Ors. |
SCR | [1964] 2 S.C.R. 567 |
Judgement Date | 1963-03-27 |
Case Number | 759 |
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