Case Note & Summary
The case arose from a civil writ petition under Article 227 of the Constitution of India filed before the High Court of Judicature for Rajasthan, Bench at Jaipur, challenging an order dated 28.03.2026 passed by the Additional District & Sessions Judge No.10, Jaipur Metropolitan-II, Chomu, in Civil Suit No.27/2014. The underlying civil suit was filed by plaintiffs-respondents No.1 to 7 for partition, declaration and permanent injunction in respect of a residential house measuring 677.3 sq. yards situated at Village Chomu, District Jaipur. The property was alleged to be joint Hindu family property purchased through registered sale deed dated 14.06.1978 in the joint names of Chaturbhuj and Babulal, both sons of Kalu Ram. Plaintiffs relied on a family settlement document dated 06.02.1994 and sought declaration of ownership and partition by metes and bounds. Petitioners, who were defendants No.2 and 5 to 11, denied the document as fake and claimed the property was self-earned by Chaturbhuj and Babulal. Defendants No.1, 3 and 4 (now represented by legal heirs 4/1 to 4/8) filed a joint written statement on 19.05.2014 and set up a counter claim for partition and permanent injunction based on the same family settlement. Issues were framed and plaintiffs concluded their evidence. When the suit reached the stage of defendants' evidence, petitioners filed an application (Annx.11) seeking to strike out the counter claim and evidence of respondents No.8, 9 and 10/1 to 10/8 as not maintainable against co-defendants. The trial court dismissed this application on 28.03.2026, noting that the suit was for partition and the ratio of Sanjay Tiwari (specific performance) did not apply, and that the same issue had already been adjudicated by order dated 26.05.2015. The writ petition raised two legal issues: whether a defendant in a partition suit can set up a counter claim against a co-defendant, and whether the earlier order dated 26.05.2015 operated as res judicata to bar re-agitation of the same issue. Petitioners relied on Sanjay Tiwari v. Yugal Kishore Prasad Sao, AIR 2025 SC 5576, arguing that a counter claim cannot be against a co-defendant. Respondents relied on B.S. Lalitha v. Bhuvanesh, 2026 SCC Online SC 860, contending that res judicata applies between stages of the same litigation and that in a partition suit defendants are in the position of plaintiffs. The High Court quoted Order VIII Rule 6-A CPC and referred to Jag Mohan Chawla v. Dera Radha Swami Satsang, (1996) 4 SCC 699, while examining the issues. The available text does not contain the final decision of the High Court on the writ petition.
Headnote
A) Civil Procedure - Counter-Claim - Permissibility Against Co-Defendant - Order VIII Rule 6-A, Code of Civil Procedure, 1908 - The court considered whether a defendant in a partition suit can set up a counter-claim against a co-defendant. Order VIII Rule 6-A CPC permits counter-claim against the claim of the plaintiff; the trial court had held that in a suit for partition, the status of defendants is similar to that of a plaintiff and thus the ratio of Sanjay Tiwari (specific performance) does not apply. The High Court was examining this reasoning in light of the extracted provisions and precedents; no final determination appears in the available text. (Paras 7-10) B) Civil Procedure - Res Judicata - Interlocutory Res Judicata - Code of Civil Procedure, 1908, principles of res judicata - Whether order dated 26.05.2015 operates as res judicata barring re-agitation of same issue in same suit. Respondents relied on B.S. Lalitha para 35 stating res judicata applies between stages of same litigation; trial court relied on that and dismissed second application. The High Court identified this as a distinct issue for consideration; no final holding appears in the available text. (Paras 4-5, 7)
Issue of Consideration
Whether in a suit for partition, a defendant can set up a counter claim against co-defendant; and whether the order dated 26.05.2015 declining the prayer of petitioners-defendants No.2 & 5 to 11 to exclude counter claim of defendants No.1, 3 & 4 operates as res judicata against petitioners to reagitate same issue in the same suit at a subsequent stage.
Law Points
- counter-claim under Order VIII Rule 6-A CPC is generally against plaintiff
- in partition suit defendants are in position of plaintiffs
- principle of res judicata applies between stages of same litigation
- scope of Article 227 supervisory jurisdiction
