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basavaraj shiromani (Advocate)     08 December 2020

Partition suit

partition suit, suit of the plaintiff is dismissed for default. one of the defendant claims that his WS is to be treated as counter claim as is also having share in it and she has already paid the court fee. thereafter another defendant died. The defendant who claims the counterclaim, has filed applications to bring the LRs of deceased defendant. whether defendant can file application to bring the LRs of deceased co defendant ? unfortunately his applications are came to be allowed. Then questions arises that the suit of the plaintiff is already dismissed for default. question of amending the plaint does not arise for consideration. how the court will act to bring the LRs of deceased co defendant ?


 3 Replies

SHIRISH PAWAR, 7738990900 (Advocate)     09 December 2020

Hello,

Once suit is dismissed for default it is not possible to file any application before court unless suit is restored. Consult with local advocate.

Dr J C Vashista (Lawyer)     10 December 2020

Originally posted by : basavaraj shiromani
partition suit, suit of the plaintiff is dismissed for default. one of the defendant claims that his WS is to be treated as counter claim as is also having share in it and she has already paid the court fee. thereafter another defendant died. The defendant who claims the counterclaim, has filed applications to bring the LRs of deceased defendant. whether defendant can file application to bring the LRs of deceased co defendant ? unfortunately his applications are came to be allowed. Then questions arises that the suit of the plaintiff is already dismissed for default. question of amending the plaint does not arise for consideration. how the court will act to bring the LRs of deceased co defendant ?

Dear Basavaraj Shiromani,

The suit of the plaintiff is dismissed for default but not on its merits, which can restored to its original position, if the plaintiff intends to proceed.

Counterclaim (separate suit) of the defendant, if filed with WS is to be admitted, registered and adjudicated as a separate suit, where claim of defendant that WS can not be treated as counterclaim.

The defendant can claim file applications to bring the LRs of deceased defendant in in counterclaim, which is separate to original suit, stated to have been dismissed in default but not restored . The defendant can implead LRs of deceased co-plaintiff or defendant. 

 

P. Venu (Advocate)     10 December 2020

How there could be a claim in a suit for partition? It appears that complete facts have not been posted.


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