Krishna Devi v. Sarju Prasad — 1985 DIGILAW 1104 (ALL)

ORDER Amarendra Nath Varma, J. - This is a defendant's revision directed against an order passed by the learned II Addl. District Judge, Allahabad, allowing an application filed by the plaintiff-opposite parties for an order that a counter-claim set up by the defendant-applicant in a suit filed by the plaintiff-opposite parties be excluded under 0. VIII, R. 6-C of the Civil P.C. 2. The relevant facts are that the plaintiff-opposite parties have filed a suit against the defendant-applicant for ejectment from premises No. 29 Tagore Town, Allahabad as well as for recovery of Rs. 28,236/- claimed as arrears of rent and pendente lite and future mesne profits at the rate of Rs. 780/- per month. The plaintiff-opposite parties claimed that they were the landlords and the defendant was their tenant on a monthly rental of Rs. 780/-. Rent with effect from Aug. 7. 1977 had fallen in arrears whereupon the plaintiffs served a combined notice of demand calling upon the defendant-applicant to pay the aforesaid arrears as also to vacate the premises. 3. A written statement was filed on behalf of the defendant-applicant in which she denied the title of the landlords and set up a counter-claim claiming title in herself. It was asserted that the house originally belonged to the defendant-applicants. At the relevant time when she is alleged to have sold the house to the plaintiffs, i.e., Oct. 10, 1969, the defendant's only son was seriously ill as a result of which she was highly depressed and in a very disturbed mental state. The plaintiffs enjoyed her implicit confidence and took advantage of her disturbed mental state. Besides the defendant is an illiterate and purdanashin lady. Instead of a mortgage deed which the defendant intended to execute for raising money for the treatment of her son the plaintiffs fraudulently got a sale deed along with a deed of re-conveyance and a rent note executed by her in their favour taking advantage of the circumstances mentioned above without explaining the contents thereof to her. She was all the time under the impression that she had executed a mortgage deed in favour of the plaintiffs. It was only when the plaintiffs received a notice dated July 22, 1980 from the plaintiffs demanding arrears of rent and asking her to vacate the premises in suit that the defendant came to learn that she had been defrauded by the plaintiffs. 4. It was only when the plaintiffs received a notice dated July 22, 1980 from the plaintiffs demanding arrears of rent and asking her to vacate the premises in suit that the defendant came to learn that she had been defrauded by the plaintiffs. 4. After setting out these pleas the defendant claimed the following reliefs in support of the counter-claim : (a) That this Hon'ble Court may be pleased to declare the deed of transfer dated 10-10-69 of the house in suit executed by the defendant in favour of the plaintiffs as invalid and void ab initio and also cancel the same. (b) That the defendant be declared as the absolute owner of the house No. 29 Tagore Town, Allahabad. (c) That in the alternative a decree may be passed in favour of the defendant against the plaintiffs in the above noted suit and the plaintiffs be directed and ordered to execute a sale deed of house No. 29 Tagore Town Allahabad in favour of the defendant Srimati Krishna Devi and in default the same may be executed and done by the Court at its own accord at the cost of the plaintiffs. (d) That any suitable decree and order may also be passed in favour of the defendant against the plaintiffs. (e) That this Court may be pleased to award any relief which it deems fit and proper in the ends of natural justice. (f) That the costs of the suit be awarded to the defendant." 5. The plaintiff-opposite parties then filed an application (28C) for excluding the counter- claim set up by the defendant on the ground that the counter-claim was set up on pleas which were wholly extraneous and beyond the scope of the suit. Further the court which was exercising the powers of a Small Cause Court could not grant the relief sought by the defendant in her counter-claim. The defendant filed an objection asserting that the Court was fully competent to entertain the counter-claim asset up by her as well as to grant the reliefs. 6. The Court below considered the plaintiffs' application as well as the objection filed by the defendant and by the impugned order it has allowed the plaintiffs' application after hearing learned counsel for both the parties. 7. Aggrieved by the aforesaid order the defendant has filed this revision. 6. The Court below considered the plaintiffs' application as well as the objection filed by the defendant and by the impugned order it has allowed the plaintiffs' application after hearing learned counsel for both the parties. 7. Aggrieved by the aforesaid order the defendant has filed this revision. For the applicant Sri S.N. Misra vehemently contended that the Court below was fully competent to entertain the counter-claim. It was urged that under O. VIII, R. 6A the only limitation on the power of the courts before which a counter-claim is set up to grant reliefs claimed therein is that the counter-claim should not exceed the pecuniary jurisdiction of the court. Sri Misra contended that even if the learned Additional District Judge who was exercising the powers of a Small Cause Court in respect of the suit was not competent to grant the reliefs claimed in the counter-claim by virtue of the provisions of the Provincial Small Cause Courts Act as well as the Bengal, Agra and Assam Civil Courts Act, inasmuch as all the Additional District Judges have an unlimited jurisdiction so far as pecuniary limits are concerned, the counter-claim set up by the applicant was clearly maintainable and the opinion expressed by the Court below is unsustainable. Thus the Court below, it was urged, has failed to exercise a jurisdiction vested in it by law in not entertaining the counter-claim and excluding the same. 8. Sri S.P. Gupta, learned counsel for the plaintiff-opposite parties, on the other hand, argued that the court below was exercising powers of courts of limited jurisdiction, namely, a Small Cause Court and not as a Court of ordinary civil jurisdiction. It was urged that a court cannot entertain a counter-claim if it would not have jurisdiction over the subject- matter of counter-claim if tried as a separate suit the counter-claim, it was submitted, being but a cross-suit, Mr. Gupta maintained that as a Small Cause Court or a court exercising powers of a Small Cause Court under the Provincial Small Cause Courts Act could not grant any of the reliefs claimed in the counter- claim, the court below rightly excluded the counter-claim. 9. For a proper appreciation of the submissions of the learned counsel it will be convenient to have a look at the relevant statutory provisions, namely, Rr. 9. For a proper appreciation of the submissions of the learned counsel it will be convenient to have a look at the relevant statutory provisions, namely, Rr. 6-A to 6-F of O. VIII of the Civil P.C. The same are extracted hereunder : "6-A. Counter-claim by defendant- (1) A defendant in a suit may, in addition to his right of pleading a set off under R. 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action according to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not : Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter- claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 6B. Counter-claim to be stated- Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. 6C. Exclusion of counterclaim- Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter- claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit. 6D. Effect of discontinuance of suit- If in any case in which the defendant sets up a counter- claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may never the less be proceeded with. 6E. 6D. Effect of discontinuance of suit- If in any case in which the defendant sets up a counter- claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may never the less be proceeded with. 6E. Default of plaintiff to reply to counter- claim-If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit. 6F. Relief to defendant where counter-claim succeeds- Where in any suit a set off or counterclaim is established as a defence against the plaintiffs claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance." 10. R. 6A to R. 6G of O. VIII have been inserted by the Civil P.C. (Amendment) Act, 1976. In my opinion, these rules merely recognise and give a concrete shape to the existing legal position as settled by a long line of decisions with regard to the true nature of a counter-claim and the power of a court to entertain the same. The rules by expressly providing for a counter-claim and putting it at par with a cross-suit merely make implicit what had hitherto been considered implicit as a result of judicial pronouncements. The new rules do not, in my view, create any new rights or vest the courts with a power which it did not previously possess. This is confirmed by the 27th Report of the Law Commission which reads as follows: "64. There is at present no express provision for the filing of a counter-claim except the rule-making power in Section 128(2)(6). The present position has been summed up by Mulla thus : 'Though the Code does not provide for counterclaims, there is nothing to prevent a Court from treating the counter-claim as a plaint in a cross - Suit and hearing the two suits together, provided the requisite court-fee on the counter-claim has been paid." High Courts which exercise original jurisdiction have made rules which provide for counter-claims (e.g., Bombay High Court Original Side Rules, 1957, Rule 137 et seq.). We are of the opinion that in order to avoid multiplicity of proceedings and to dispel doubts that counter-claim cannot be entertained, an express provision should be inserted in the Code for this purposes. (Emphasis added)." 11. It is apparent that the amendments inserting the aforesaid rules in Order VIII have been made in pursuance of the recommendations of the Law Commission. 12. Now the legal position as it existed right up to the time when the amendments were introduced in O. VIII was that a counter-claim being substantially and essentially a cross-action and not merely a defence to the plaintiffs action, it must be of such a nature that the Court has jurisdiction to entertain it as a separate suit which inevitably implies that the Court must have jurisdiction over the subject-matter of the cross-claims if tried as a separate suit. 13. Thus in Sri Vasudevandra Saraswathi Swami v. Sridhara Sivarama Moorthy, AIR 1949 Mad 630, the Madras High Court held that a counter-claim may be set up only in respect of claims as to which the party could bring an independent action in the Court in which the counter-claim is brought. It placed reliance on the following observations made by Lord Dunedin in Williams Brothers v. Agius Ltd., 1914 AC 510: "But this at least is certain, that no counter-claim can be given effect to as a defence unless the Court dealing with the original action has also jurisdiction in the matter of the counter-claim." His Lordship of the Madras High Court also caught support from another decision of the Privy Council in the case of Bow McLachlan & Co. v. Ship Camosun, 1909 AC 597 where a question of Admiralty Jurisdiction arose and it was ruled by the Privy Council that to an action brought in an Admiralty Court a counter-claim which ordinarily would not be triable by an Admiralty Court could not be put forward. 14. To the same effect are the observations made by our own Court in the case of Abdul Majid v. Abdul Rashid reported in AIR 1950 All 201 , It was held in this case that the essence of a counter-claim is that the defendant should have a cause of action against the plaintiff. 14. To the same effect are the observations made by our own Court in the case of Abdul Majid v. Abdul Rashid reported in AIR 1950 All 201 , It was held in this case that the essence of a counter-claim is that the defendant should have a cause of action against the plaintiff. The counter-claim is in the nature of a cross action and not merely a defence to the plaintiffs claim and consequently inasmuch as the defendant had no cause.of action against the plaintiff and no separate action could be maintained on the basis thereof, the claim put forward by the defendant could not be characterised as a counter-claim. 15. In another decision of our Court in the case of Beni Madho v. Gaya Prasad reported in, 1890 All WN 168 it was ruled that a revenue court cannot entertain a claim to a set off unless such claim if made the subject of a suit would fall within its jurisdiction. Although the observations were made in regard to a set-off the ratio of this decision applies with much greater force to a counter-claim which is in essence but a cross-suit. 16. The Calcutta and Andhra Pradesh High Courts have also taken the same view as has been enunciated in the decisions cited above (see Manick Lal Seal v. K.P. Chowdhury, AIR 1976 Cal 115 and Imam Peer v. S. Khadija Bi, AIR 1965 Andh Pra 18 (Para 5), In the latter of these decisions it was observed at page 19 : "It is, however, beyond doubt that a counter- claim can be maintained only where the defendant is entitled to bring an independent action for the same relief in the same court in which the counter-claim is laid." 17. The Supreme Court has also ruled in a decision reported in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, AIR 1964 SC 11 that there is nothing in law which precludes a court from treating a counter- claim as a plaint in a cross suit. The Supreme Court has also ruled in a decision reported in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, AIR 1964 SC 11 that there is nothing in law which precludes a court from treating a counter- claim as a plaint in a cross suit. It is significant that these observations had been made at a time when there was no specific provision for a counter-claim such as we now have in the shape of O. VIII, R. 6-A of the Civil P.C. It is apparent that if the counter-claim is to be treated as a cross-suit, the court in which the same is filed must obviously be competent to entertain the counter-claim if tried as a separate action, i.e., the Court must have jurisdiction over the subject-matter of the counter-claim. 18. A review of the various authorities discussed above thus clearly leads to the conclusion that if the court in which the counter- claim is set up would not have jurisdiction to try the same if filed as an independent action it will not be competent to entertain the counter-claim. There appears to be a complete unanimity on this legal controversy among the various High Courts. 19. That a counter-claim is in essence a cross-suit has now been given a statutory recognition by the Legislature in the shape of Rr. 6-A to 6-G of O. V III. Sub-rule (2) of R. 6A makes explicit what had been hitherto spelled out by judicial precedents. It states that a counter-claim shall have the same effect as a cross-suit. Sub-rule (3) also leads to the same conclusion. It provides that the plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant. Finally, sub-rule(4) of R. 6-A makes the legal position abundantly clear by providing that the counter- claim shall be treated as a plaint and governed by the rules applicable to plaints. 20. Regarding R. 6-A of O. VIII in its entirety it is clear that the counter-claim shall be treated as a cross-suit and all the rules applicable to a suit shall mutatis mutandis apply to a counter-claim. It must, therefore, follow as a necessary corollary that the Court in which a counter-claim is filed should be a court which has jurisdiction over the subject-matter of the counter-claim if tried as a suit. 21. The same conclusion flows from Rr. It must, therefore, follow as a necessary corollary that the Court in which a counter-claim is filed should be a court which has jurisdiction over the subject-matter of the counter-claim if tried as a suit. 21. The same conclusion flows from Rr. 6D to 6-G of O. VIII, R. 6-D states that counter- claim may be proceeded with even if the suit of the plaintiff is stayed, discontinued or dismissed. Thus in the present case even if the claim of the plaintiffs fails the Court below shall have to proceed with the counter-claim of the defendant-applicant, which will lead to the conclusion that even though the Court below is exercising the powers of Small Cause Court it will have to act as a regular court in regard to the counter-claim. This could not have been intended by the Legislature. 22. Now there can be little doubt that the Court below was trying the suit as a small cause. The suit had not come to the file of the learned Additional District Judge on the regular side but only by virtue of its having been invested with the powers of a Small Cause Court. And it was not disputed by the learned counsel for the applicant that the learned Additional District Judge exercising the powers of Small Cause Court could not grant any of the reliefs claimed in the counter-claim set up by the applicant. What the learned counsel for the applicant contended was that as under the Bengal, Agra and Assam Civil Courts Act the Additional District Judge enjoyed powers of unlimited pecuniary jurisdiction, the court below was competent to entertain the counter-claim even if it may not be otherwise competent to grant the reliefs claimed by the defendant-applicant in the counter-claim. In the counter-claim the defendant-applicant had claimed the relief of declaration that the deed of transfer dated Oct. 10, 1969 executed by her in favour of the plaintiffs be declared invalid and void ab initio and, in the alternative, the plaintiffs be directed to execute a sale deed in respect of the house in dispute in favour of the defendant-applicant. The applicant had also prayed that she be declared the absolute owner of the house in suit. It is indisputable that none of these reliefs could be granted by a Small Cause Court. Nor could it adjudicate the complicated questions of title raised in the counter-claim. The applicant had also prayed that she be declared the absolute owner of the house in suit. It is indisputable that none of these reliefs could be granted by a Small Cause Court. Nor could it adjudicate the complicated questions of title raised in the counter-claim. It is thus clear beyond doubt that if the counter-claim had been filed as an independent action before the court below which was exercising the powers of a Small Cause Court in the matter, the court below would not have had jurisdiction to try the same. Following the dictum laid down in the decisions cited above with which I am in respectful agreement I hold that the court below rightly excluded the counter-claim. 23. For the applicant, however, Sri S.N. Misra placed strong reliance on the proviso to R. 6-A of O. VIII and contended that the only fetter which the Legislature intended to place on the jurisdiction of the Court to entertain a counter-claim is that it shall not exceed the pecuniary limits of the jurisdiction of the court. Learned counsel submitted that all that was required to be established by a defendant setting up a counter-claim in so far as the jurisdiction of the court is concerned was that there should be a right or claim in respect of a cause of action accruing to the defendant against the plaintiff and that the counter-claim should not exceed the pecuniary jurisdiction of the Court. 24. I am unable to agree. The proviso to R. 6-A is not, in my opinion, exhaustive on the question of the jurisdiction of the court to entertain the claim. The proviso merely makes explicit what has been hitherto implicit, namely, that the Court before which the counter-claim is set up must have jurisdiction over the subject- matter of the counter-claim including pecuniary jurisdiction. Further sub-rule (1) of R 6-A does not purport to define the jurisdiction of the Court before which the counter-claim can be set up. As mentioned above, it merely makes an express provision for a counter-claim by a defendant which right was previously spelled out only by judicial precedents referred to and discussed above. Further sub-rule (1) of R 6-A does not purport to define the jurisdiction of the Court before which the counter-claim can be set up. As mentioned above, it merely makes an express provision for a counter-claim by a defendant which right was previously spelled out only by judicial precedents referred to and discussed above. Further the argument of Sri Misra ignores the other sub-rules of R. 6A, particularly sub-rule (2) which makes it abundantly clear that the counter-claim shall have the same effect as a cross-suit and sub- rule (4) which states that the counter-claim shall be treated as a plaint and governed by the rules applicable thereto. These sub-rules clearly affirm and give statutory recognition to the existing rule that the court must have jurisdiction over the subject-matter of the counter-claim. 25. Sri Misra next placed reliance on S. 23 of the Provincial Small Cause Courts Act which empowers a court of small causes to return the plaint to be presented to a court having jurisdiction to determine the title where the court finds that the right of a plaintiff and the relief claimed by him depend upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine. It was urged by the learned counsel that even if, therefore, a Small Cause Court did not have jurisdiction to grant the reliefs claimed in the counter-claim by the defendant-applicant it could return the plaint to be presented to a court having jurisdiction to determine the title. 26. The argument does not appeal to me. Section 23 of the aforesaid Act does not, to my mind, throw any light whatever on the controversy. It does not directly or indirectly touch the issue of the limits of jurisdiction of the court to entertain a counter-claim. It merely provides that when a plaintiff sets up a right which depends upon the proof of a title to immovable property, the court may, at any stage of the proceedings, return the plaint. That does not, however, lead to the conclusion that even though a Small Cause Court does not have jurisdiction to grant reliefs claimed by the defendant in a counter-claim set up by him in a Small Cause Court, the latter shall entertain the same and proceed to determine finally the complicated questions of title to immovable property. That does not, however, lead to the conclusion that even though a Small Cause Court does not have jurisdiction to grant reliefs claimed by the defendant in a counter-claim set up by him in a Small Cause Court, the latter shall entertain the same and proceed to determine finally the complicated questions of title to immovable property. In my view, far from supporting the applicant's contention, S. 23 negatives the same and indicates that a Small Cause Court cannot entertain a counter-claim if it implies proof or disproof of a title to immovable property which it cannot finally determine in a suit of the nature of small cause. 27. I shall now briefly deal with the authorities cited by the learned counsel. The first decision cited by the learned counsel is reported in Vishwanath Lohia v. Allahabad Bank, AIR 1979 All 12 , It is difficult to see how this decision lends any support to the applicant. In this case, the defendant in a suit filed a written statement making a counter-claim therein along with an application to sue for counter-claim in forma pauperis. The lower court had rejected the counter-claim on the ground that no court-fee having been paid on the counter-claim the same was not maintainable. This Court held in a revision filed against the order passed by the lower appellate court that inasmuch as under R 6A(2) a counter-claim has been given the effect of a cross-suit, the written statement filed by the defendant making a counter-claim filed in forma pauperis fell within the purview of O. XXXIII and hence the court below was found to consider the defendant's application for relief to sue in forma pauperis. It could not have rejected the counter-claim without disposing of that application. 28. The next case relied on by the learned counsel is reported in AIR 1964 SC 11 (supra). That case also does not support the applicant's contention. It merely says that a counter-claim may be treated as a cross-suit. 29. Another decision cited by learned counsel is reported in TKVS Vidya-pooracharya Sons v. M.R. Krishnamachary, AIR 1983 Mad 291 , This again is of little assistance in resolving the controversy. It merely holds that a counter-claim cannot be separated from the disposal of the main suit claimed but must be considered as being one with it, i.e., it should be treated as part and parcel of the suit. It merely holds that a counter-claim cannot be separated from the disposal of the main suit claimed but must be considered as being one with it, i.e., it should be treated as part and parcel of the suit. The decision does not consider directly or by implication the issue with which I am concerned. Likewise, another decision relied on by Sri Misra reported in Mohinder Singh Jaggi v. Data Ram Jagannath, AIR 1972 SC 1048 (para 24) lends no assistance. The decision merely recognises the existing legal position, namely, that a counter-claim may be treated as a cross-suit. 30. To sum up, the clear legal position which emerges from judicial precedents as well as an analysis of Rr. 6-A to 6-G of O. VIII is that if the court in which the defendant sets up a counter-claim would not have jurisdiction over the subject-matter of the counter-claim if tried as a separate and independent action, it shall not have jurisdiction to entertain the counter-claim. That being so, the court below rightly excluded the counter-claim set up by the applicant. 31. It is however, made clear that the observations which have been made in the judgment are confined to the legal controversy whether the court below had jurisdiction to entertain the counter-claim set up by the defendant and this Court should not be taken to have expressed any opinion on the merits of the counter-claim of the applicant. 32. In the premise. the revision fails and is dismissed with costs. The interim orders are hereby vacated.