Ramesh (Na) 22 March 2016

Counter claim in miscellaneous petition

I filed OS and obtained a contested decree in my favour. Now the defendant has filed a Misc Petition under Order 9 rule 13 to set aside the decree. Obviously I will file my objections saying that it is not an exparty decree etc My question is, along with my objections, can I also file a counter claim under order 8 rule 6A read with section 141 of cpc, praying for damages that I had not prayed for in the original suit ? Thanks.

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6 Replies

Adv. Yogen Kakade (+ 91 9225510883) 23 March 2016

Are you the lawyer in this case?

adv.raghavan (Advocate,9444674980) 23 March 2016

I think it is not possible, but u can insist for , in your counter to impose exemplary cost.

Ramesh (Na) 23 March 2016

Hi,

Thanks for replies. I am not the lawyer but I am party in person drafting my own objections with help of lawyers.

I could not find any examples of counter claims in miscellaneous petitions but I thought as section 141 provides for miscellaneous petitions to be equal to suits procedurally it may be possible.

I did find some arbitration petitions where respondant contrator files a counter claim. Also some writ petitions for marriage where respondent files counter calim. But nothing under order 9 rule 13

What is the max for exemplary costs ? I will be happy if I can get any interest awarded to the decreed amount as the decree does not give any interest. Is there any way to get intrest till date of realisation ? This will prevent the applicant from draging the litigations.

Thanks.

Rahul Kapoor (Legal Enthusiast) 24 March 2016

Dear Ramesh,

How can he file a Misc Petition under Order 9 Rule 13 ?

In practise defendant/s files an application under Order 9 Rule 13 in the same court which has passed an ex-parte decree.

Regards

Ramesh (Na) 26 March 2016

Hi Rahul,

Defendant has filed in same court saying it is exparty when it was contested. He appeared, filed ws, cross examined then stopped appearing. now he says he wants to lead his evidence so he claims it is exparty decree.

Since it is a misc petition, section 141 applies so same procedure to be followed as suits.

So can I file counter claim in his misc petition claiming for damages/interest that were not awarded in decree ?

Also in the same lines, can I file application under order 7 rule 11 or order 15 rule 3 to have it dismissed quickly without allowing him to drag on the evidence in his misc petition ?

Thanks.

(Guest)

Order 9 rule 13 provides for an application to be filed in the same court. Obviously if had stopped apearing the court must have proceeded exparte against him. You shall file your objections against the application in which itself you can pray for exemplary costs to be awarded to you. Counter Claim is not possible in this case because the matter has already been decided. whereas he has just moved an application and not filed a suit.