HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 835 of 2024 Court No. - 5 HON'BLE MANISH KUMAR NIGAM, J. 1. This petition has been filed with following relief: "It is, therefore most respectfully prayed that the petition may be allowed and impugned orders dated 17.10.2023 passed by learned District Judge, Jhansi in Civil Revision No.10 of 2022 (Dr. Balbir Krishna Gupta vs. Dr. Sanjya Tripathi and another) and order dated 05.03.2022 passed by Civil Judge, Junior Division, Jhansi in Misc. Case No.14 of 2020 (Dr. Balbir Krishna Gupta vs. Dr. Sanjay Tripathi and another) may be set aside and order dated 20.01.2020 withdrawing the suit by the plaintiff may be recalled partly and petitioner's counter claim may be directed to be decided on merit or pass such other and further order which the Hon'ble Court may deem fit and proper in the circumstances of the case." 2. A Suit No.100 of 2014 was filed by the plaintiff-respondent for injunction. The petitioner was defendant no.2 in the suit and has filed a written statement and has also filed a counter claim for a mandatory injunction for demolition of boundary wall, which is alleged to have been constructed by the plaintiff. Averment and prayer in this regard has been specifically made in paragraph no.18 of the written statement. 3. The plaintiff moved an application for withdrawal of his suit. The said application has been allowed by the trial court vide order dated 20.01.2020 on payment of cost of Rs.2500/- to the petitioner. 4. On 25.02.2020, petitioner moved an application that though, there was no application for withdrawal of the counter claim but as the suit was dismissed and counter claim was also consigned to record and, therefore, Versus Counsel for Petitioner(s) : S.K. Mishra Counsel for Respondent(s) : Kamlesh Kumar Tiwari Dr Balbir Krishna Gupta .....Petitioner(s) Dr Sanjay Tripathi And Another .....Respondent(s) the petitioner moved an application that his counter claim may be decided. 5. To the said application, objections were filed by the plaintiff- respondents. The trial court has rejected the application on the ground that counter claim was never pressed and the court fee has also not paid, and the counter claim filed by the petitioner has also been dismissed. 6. Counter claim is like a separate suit and cannot be dismissed, in case, the original suit is dismissed, for any reason. It has to be decided as a separate suit. Since there was no application filed by the petitioner for withdrawal of his counter claim, his counter claim has wrongly consigned to record. Even in case, no court fee has been paid by the petitioner that cannot be a ground for rejection of his application. Counter claim cannot be consigned to records. Petitioner may be directed to pay the court fees. 7. Therefore, in my view, court below has erred in law in rejecting the application of the petitioner and order deserves to be set aside. 8. Accordingly, orders dated 17.10.2023 and 05.03.2022 are set aside. 9. Writ petition is allowed. 10. Court below is directed to register the counter claim as a separate case and decide the same in accordance with law. October 7, 2025 S.A. A227 No. 835 of 2024 2 (Manish Kumar Nigam,J.) Digitally signed by :- SALMAN AHMAD High Court of Judicature at Allahabad Digitally signed by :- SALMAN AHMAD High Court of Judicature at Allahabad