SURAT RAM v. ASHA RAM — 1986 DIGILAW 22 (HP)

JUDGMENT T. R. Handa, J,—This Revision Petition arises out of civil suit No. 123/1 of 1981 which has been instituted by the present respondent Asha Rani against the present petitioners and is presently pending in the court of the Sub-Judge, Nalagarh. The facts and circumstances which obliged the petitioners (original defendants) to approach this Court may. first be narrated. 2. The petitioners and the respondent are brothers, being the sons of the same father, Shri Nanak Chand, though from his different wives. The petitioners are from the first wife while the respondent is from the second wife of Shri Nanak Chand. Shri Nanak Chand died intestate in Sambat 1985 corresponding to 1928 AD. He left behind the petitioners and the respondent as his only legal heirs. According to the case of the plaintiff-respondent, Shri Nanak Chand at the time of his death owned land which measures 63 Bighas 16 Biswas in lieu of which the land in suit measuring 61 Bighas 9 Biswas, as detailed in the heading of the plaint was allotted during the settlement and consolidation proceedings which took place after the death of Shri Nanak Chand. The plaintiff wanted to get his l/3r-d share in this land separated. He accordingly applied to the Revenue Officer for partition. The defendants, that is, the present petitioners opposed that prayer of the plaintiff for partition on the plea that the plaintiff had no title to any part of the suit land. Since the question of title was raised in the partition proceedings, the Revenue Officer directed the plaintiff to get his title established in a civil court of competent jurisdiction.. This made the plaintiff to institute his suit out of which the present proceedings arise. The plaintiff in his suit had claimed a declaration to the effect that he was a co-sharer or co-owner in possession to the extent of l/3rd share in the land referred to above and that the defendants had no right to deny his title or to prevent the plaintiff from getting his l/3?;d share partitioned. 3. The petitioner-defendants in their written statement, inter alia, pleaded that the total estate left by their father, Shri Nanak Chand, comprised of an area of 95 Bighas 16 Biswas as detailed in para 5 (ii) of their written statement and not 63 Bighas 16 Biswas as claimed in the plaint. 3. The petitioner-defendants in their written statement, inter alia, pleaded that the total estate left by their father, Shri Nanak Chand, comprised of an area of 95 Bighas 16 Biswas as detailed in para 5 (ii) of their written statement and not 63 Bighas 16 Biswas as claimed in the plaint. In lieu of the aforesaid land left behind by Shri Nanak Chand, land measuring 95 Bighas 14 Biswas as detailed in para 6 of the written statement had been allotted during the consolidation proceedings. The main plea of the defendants was that after the death of their father there had been some arrangement inter se parties in terms on which out of the estate of their father, land measuring 34 Bighas 5 Biswas at detailed in para 6 (i) fell to the share of the plaintiff while the remaining land measuring 61 Bigha 95 Biswas forming subject-matter of the suit fell to the share of the defendants. In addition to the various pleas raised by them in dependance of the suit, the defendants raised certain pleas by way of counterclaim on the basis of which they prayed for a decree of declaration to the effect that they were co-owner/co-sharers to the extent of 2/3rd share in the land measuring 35 Bighas 14 Biswas as detailed in para 6 (ii) of their written statement. 4. The written statement was fifed on 26-11-1981. The plaintiff was allowed thereafter to file rejoinder to the written statement. After such rejoinder had been filed issues were framed on 10-5-1982 which covered all the pleas raised in the pleadings including the pleas raised by way of counterclaim. It was thereafter on 3-8-1983 that the plaintiff made~ his application praying that the paragraphs in the written statement pertaining to counterclaim be deleted and the issues framed on the basis of such paragraphs be struck off. This application purports to have been made under Order VI, Rule 16, Order XIV, Rule 5 and section 151, C. P. C. The defendant (petitioner) opposed that prayer. The trial Court, however, vide its order, dated 10-2-1984 allowed that application impliedly directing thereby that the various pleas raised in the written statement by way of counterclaim txt deleted and the issues framed covering such pleas be struck off. 5. It is this order, dated 10-2-1984 passed by the trial Court Which is the subject-matter of challenge in the present revision petition. 5. It is this order, dated 10-2-1984 passed by the trial Court Which is the subject-matter of challenge in the present revision petition. 6. The submissions made on behalf of the petitioners .in support of their challenge against the impugned order are short and simple. They rue like this : 7. Rule 6-A of Order VIII, C, P. C. now confers a statutory right on the defendant to set-up by way of counterclaim any right or claim in respect of which cause of action has accrued to him against the plaintiff before the day, the defence is delivered. This right to setup the counterclaim, proceeds the submission, is available regardless of the nature of the claim set up as counterclaim or of the suit in which it is set up since the plain language employed in Rule 6-A (supra) mentions of no such bars. The only limitation found in Rule 6-A as per submission of the petitioners is that the counterclaim set up must not exceed the pecuniary jurisdiction of the trial Court. Once such a counterclaim 1ms been set up, the court has no option but to adjudicate upon the same unless he orders exclusion thereof in exercise of the jurisdiction vested in it under Rule 6-C of Order VIII. This jurisdiction can, however, be exercised only on an application made to that effect by the plaintiff before the settlement of issues in the instant case the counterclaim having been validly set up in the written statement and put into issues, the court lied no jurisdiction to order its exclusion after the issues had been settled. 8. The counter submission made on behalf of the respondent-plaintiff is still more simple. As per this submission, a counterclaim within the contemplation of Rule 6-A of Order VIII, C. P. C. must pertain to a claim in money and it can be set up only in a suit for recovery of money. The counterclaim as set up by the petitioners-defendants in their written statement in the instant case, being not a claim in money nor having it been set-up in a suit for recovery of money, was not maintainable in law and had been rightly excluded by the trial Court. The counterclaim as set up by the petitioners-defendants in their written statement in the instant case, being not a claim in money nor having it been set-up in a suit for recovery of money, was not maintainable in law and had been rightly excluded by the trial Court. Reliance in support of this submission was placed on a Division Bench decision of the Patna High Court given in the case of Jaswant Singh v. Darshan Kaur and others, reported in AIR 1983 Pat 132. 9. From the rival submissions made on behalf of the parties, the following questions would arise for consideration: 1. Whether the right to setup a counterclaim conferred on a defendant by Rule 6 of Order V1I1, C. P. C. is available only in a suit for recovery of money or in every suit irrespective of its nature ? 2. Whether the right or claim which may be pleaded by way of a counterclaim is restricted to the claim in money only or it can relate to any civil right or claim which can be enforced by an independent suit? 3. What are the options open to the court in dealing with a counterclaim once it has been lawfully pleaded on behalf of the defendant under Rule 6-A of Order VI if, C. P. C. ? 10. The answers to these questions would naturally turn round the correct interpretation and appreciation of the language employed in the various provisions of the Code dealing with the subject of counterclaims. These provisions are found in Rules 6-A to 6-G of Order VIIJ, C. P. C. which were inserted in the Code for the first-time by section 58 of the Civil Procedure Code (Amending Act, 1976), hereinafter called the Amending Act. These provisions are found in Rules 6-A to 6-G of Order VIIJ, C. P. C. which were inserted in the Code for the first-time by section 58 of the Civil Procedure Code (Amending Act, 1976), hereinafter called the Amending Act. They read: "6-A. (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit out before the defendant has delivered his defence or before the time limited for delivering his defence has expired whether such counterclaim is in the nature of a claim for damages or not : Provided that such counterclaim shall not exceed the pecuniary limit* of jurisdiction of the Court. (2) Such counterclaim 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 oa the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court. (4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints. 6-B. Where any defendant seeks to rely upon any ground as. supporting a right of counterclaim,shall, in Ins written statement, state specifically that he does so by way of counterclaim. 6-C. Where a defendant sets up a counterclaim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counterclaim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counterclaim may be excluded and the Court may, on the hearing of such application; make such order as it thinks fit. 6-D. If in any case in which the defendant sets up a counterclaim, t the suit of the plaintiff is stayed, discontinued or dismissed, the, counterclaim may nevertheless be proceeded with. 6-D. If in any case in which the defendant sets up a counterclaim, t the suit of the plaintiff is stayed, discontinued or dismissed, the, counterclaim may nevertheless be proceeded with. 6-E If the plaintiff makes default in putting in a reply to the counterclaim made by the defendant, the Court may pronounce .judgment against the plaintiff in relation to^ the counterclaim : made against him, or make such order in relation to the counter-claim as it thinks fit. 6-F. Where in any suit a set-off or counterclaim is established a defence against the plaintiffs claim., and any balance is found due to the defendant as the case may be, the Court may give judgment to the party entitled to such balance. 6-G. The rules relating to a written, statement by a defendant shall apply to a written statement filed in answer to a counterclaim." 11. It may be observed. at this stage that the expression "counterclaim" had not been accorded a statutory recognition before the enactment of. the Amending Act The law then recognized only a plea of set-off in terms of Rule 6 of Order VIII. As is obvious from the plain language of this Rule, a plea of set-off which was in main a plea of defence, could be raised only in a suit for the recovery of money and the set-off could be pleaded only in respect of an ascertained sum of money. -With the enforcement of the Amending Act, the counterclaim has now been specifically recognized in law and it can now be set up by a defendant as a matter of right under Rule 6-A of Order VIIL Whereas Rule 6 of Order VIII, provides in no ambiguous terms that a set-off can be claimed by a defendant only in a suit for recovery of money, the language of Rule 6~A places no such restrictions or limitations on the nature of the suit in which a plea of counterclaim.: may be set-up. This is obvious from the opening words of these two provisions which in the case of Rule 6 read "where in a suit for recovery of money................"and in the case of Rule 6-A read 4ia defendant in a suit may/...........—set up way of counterclaim................" In case the right to set up a counterclaim was intended to be restricted to money suits only, the Legislature must have qualified the expression "in a suit" as used in Rule 6-A by adding the words "for the recovery of money" as has been done in Rule 6. Reading Rules 6 and 6-A together, there can, in my opinion, be no escape from the conclusion that whereas a plea of set-off can be claimed only in a suit for the recovery of money, a counterclaim can be set up in any suit irrespective of its nature. 12. We shall no once again revert to the language of Rule 6-A in order to find an answer to the next question, whether there is any limitation on restriction placed on the nature of the right or claim which may be set up by the defendant by way of, a counterclaim. The relevant, parts of this Rule read ‘a defendant.... .-. ....may set up by way of counterclaim against the claim of the plaintiff any right or claim in respect of a cause of action ........„......" As I read this language, it can admit of no bar or restriction whatever on the nature of the right or claim which may be set up by the defendant by way of a counterclaim. The use of the phrase any right or claim" provides* a clear indication that no curbs were intended to be placed on the nature of the claim or right which may be set up by the defendant by way of counter claim.. In other words, such a., right or claim may or may hot be a claim in money. 13. The words/ against the claim of the plaintiff" as used in Rule 6-A, however, do appear to be of some significance in this connection. In other words, such a., right or claim may or may hot be a claim in money. 13. The words/ against the claim of the plaintiff" as used in Rule 6-A, however, do appear to be of some significance in this connection. The use of these words, would suggest that, the right or claim that may be set up by way of a counterclaim should be against the claim of the plaintiff in the since that there must be some nexus between the claim made by the plaintiff in his suit and the claim set up by the defendant by way of counterclaim. This nexus should be such that it may legitimately be said that the counterclaim set up by the defendant is against the claim of the plaintiff. The idea being that the two claims, the one set up in the suit by the plaintiff and the other set up way of counterclaim by the defendant, are capable of being conveniently disposed of together. In this view7 of the matter it may not be open to the defendant to set up a right of easement in a suit brought for the-recovery of money and the vice versa. Except for this restriction with respect to the nexus between the claim made in the suit and the claim set up by way of a counterclaim, I can appreciate of no other bar, limitation or restriction on the nature of the claim or right which may be set up by way of a counterclaim. It may be observed that where there is no connection between the claim made in the suit and the claim set up by way of counterclaim or a joint trial of the two claims looks cumbersome, the trial Court has been vested with ample power to order exclusion of the counterclaim. This power, of course, can be exercised strictly in accordance with the provisions of Rule 6-C of Order VIII. 14. The Patna High Court in taking the contrary view in the case of Jaswant Singh (supra) appears to have been influenced more by the provisions found in Rule ?Q (1) of Order XX, than the relevant provisions contained in Rule 6-A of Order VIII. In paras 8 and 9 of the report the learned Juges in the first instance expressed themselves like this :-~ "8. In paras 8 and 9 of the report the learned Juges in the first instance expressed themselves like this :-~ "8. Now the question which has to be examined is as to whether there is any limitation on the nature of the counterclaim ? Rule 6 prescribes certain conditions before a plea of set-off can be entertained These conditions are that (i) the suit must be one for recovery of money, (iij the set-off claimed by the defendant must be in respect of an ascertained sum of money, (Hi) such sum must be legally recoverably by the defendant from the plaintiff, (iv) both the parties must fill the same character as they fill in the plaintiffs suit, (v) such claim should not exceed the pecuniary limit of the jurisdiction of the court. 9. So far as the new Rule 6-A is concerned, no such restrictions have been mentioned. It simply enables a defendant to set up by way of a counterclaim any right or claim in respect of a cause of action accruing to the defendant against the plaintiff*. Can it be said that in view of Rule 6-A a defendant is at liberty to raise any dispute in the suit of the plaintiff irrespective < of its nature." 15. Later after construing the expression "counterclaim" the learned Judges proceeded to make the following observations in para 10 of the report :-~ "if the expression counterclaim used in the aforesaid Rule 6-A is given an interpretation to include any claim irrespective of its nature and as to whether it has any connection with the claim of the plaintiff then in a suit filed on behalf of the plaintiff for recovery of an amount advanced to the defendant, defendant can make a prayer to declare his title and to pass a decree for recovery of possession in respect of any land or house against the plaintiff of that suit, if any such dispute is pending between them, although it has no connection whatsoever with the claim for ,a money decree made on behalf of the plaintiff. In my view, the framers of the Code never proported to enlarge the scope of a suit filed on behalf of the plaintiff, at the instance of the defendant. In my view, the framers of the Code never proported to enlarge the scope of a suit filed on behalf of the plaintiff, at the instance of the defendant. When they have used the expression counterclaim it means that the claim and the counterclaim are of the same nature, so that dispute relating to such claim and counterclaim may be decided in the same suit in order to avoid multiplicity of the suits." 16. Again towards the end, after quoting the provisions of Rule 6-F of Order VIII and Rule 19 (1) of Order XX, the learned Judges, however, proceeded to conclude thus : "In view of the amended Rule 19 (1), which is a provision regarding preparation of the decree in respect of suits where a counterclaim has been allowed by the Court, it is clear that in the decree what amount is due to the defendant has to be stated. In my opinion, the contention of the learned Counsel for the petitioner that counterclaim under the rules aforesaid can be made only in such suits in which there is dispute in respect of money claim, has to be accepted." 17. With all respects to the learned Judges of the Patna High Court, I find it difficult to subscribe to the above view taken by them. The provisions of Rule 19 (1) of Order XX could not be exploited to" distort the plain language of Rule 6-A of Order VIII. Incase any conflict is apprehended in the two provisions, the same need to be resolved by placing a harmonious construction on such provisions without causing violence to the language of either of them. Rule 19 (1) of Order XX, as it stood before the enactment of the Amending Act, was applicable only to suits for recovery of money where a plea of set-off has been allowed. After its amendment by the Amending Act. it has now been made applicable also to the suits where a counterclaim has been allowed. As earlier observed, a counterclaim may or may not pertain to money. The provisions of Rule 19 (1) of Order XX would, therefore, in my view, be attracted only in such suits where the counterclaim allowed is a claim in money only. They shall have no application where the claim in suit and the counterclaim pertain to claims other than money claims. The provisions of Rule 19 (1) of Order XX would, therefore, in my view, be attracted only in such suits where the counterclaim allowed is a claim in money only. They shall have no application where the claim in suit and the counterclaim pertain to claims other than money claims. This, according to me, is the only way in which both the provisions, namely, Rule 6*A of Order VIII and Rule 19 (1) of Order XX, can be construed harmoniously. Otherwise also when no restrictions or limitations are placed on the nature of the suit in which a counterclaim may be set up, it appears only logical to construe that no such restrictions were intended to be placed on the nature of the counterclaim either. My answer to question No. 2 posed above, therefore, is that the law places no bar or restriction on the nature of the claim which may be set up by way of a counterclaim provided there is a clear nexus between the claim made in the suit and the claim set up by way of counterclaim. 18. The third question formulated above would present no difficulty Once a counterclaim within the contemplation of Rule 6-A (1) has been validity set up, it has to be treated as a plaint and tried like a cross-ssuit in accordance with the relevant provisions of the Code unless its exclusion is order by the Court in exercise of the jurisdiction vested in it under Rule 6-C This jurisdiction under Rule 6-C has, however, to be exercised judicially and only when an application to that effect is made to the Court by the plaintiff before the settlement of issues. Where a counterclaim has been set up by the defendant, and no application under Rule 6-C for its exclusion is made on behalf of the plaintiff before the settlement of issues the court has no option but to proceed with the trial of the counterclaim like the trial of a regular suit. 19. Where a counterclaim has been set up by the defendant, and no application under Rule 6-C for its exclusion is made on behalf of the plaintiff before the settlement of issues the court has no option but to proceed with the trial of the counterclaim like the trial of a regular suit. 19. The legal position that now obtains with respect to counterclaims with the enactment of Rules 6-A to 6-G of Order VIII, C. P C may be summed up thus; (i) Rule 6-A confers a statutory right on the defendant to set up a counterclaim; (ii) This right to set up a counterclaim is in addition to the right allowed to the defendant under Rule 6 to plead a set off; (iii) Whereas the right to plead a set-off under Rule 6 is available onlv in suits for recovery of money, the right to set up a counterclaim is available m every suit irrespective of its nature ; (iv) A counterclaim within the contemplation of Rule 6-A may be based on any right or claim irrespective of its nature provided the cause of action in respect thereof has accrued to the defendant against the plaintiff before the filing of defence or before the time limited for delivering his defence expired, the counterclaim does not exceed the pecuniary limits of jurisdiction of/the court and there is some nexus between the claim of the plaintiff made in the suit and the claim set up by way of counterclaim ; (v) A counterclaim so set up is to be treated as a plaint in the cross-suit and would be governed by the rules applicable to pleadings; (vi) A counterclaim has to be tried and adjudicated upon like a cross-suit unless the court orders its exclusion in exercise of its jurisdiction under Rule 6-C; (vii) Jurisdiction under Rule 6-C to order exclusion of the counterclaim can be exercised by the Court only if an application to that effect is made to it by the plaintiff before the settlement of issues ; and (viii) Unless the court orders the exclusion of the counterclaim under Rule 6-C, it has no option but a try and adjudicate upon it as if it was a regular civil suit. 20. 20. Now in the instant case on the facts as stated above, it cannot be said that there was no nexus or connection between the claim of the plaintiff-respondent as set out in the suit and the claim of the defendants-petitioners as pleaded by way of counterclaim in their written statement. The counterclaim as sat up by the defendants-petitioners was thus very much maintainable in law. In passing the impugned order which operates to direct deletion of the various pleas raised by the defendants-petitioners in their written statement by way of counterclaim, the trial Court exercised a jurisdiction not vested in it by law. This order, therefore, cannot be sustained and must be quashed. 21. For the foregoing reasons I allow this revision petition, quash the impugned order and revision petition, quash the impugned order and direct that the trial Court shall proceed with the trial of the suit as also of the counterclaim set up by the defendants-petitioners on the issues already settled. 22. The parties through their counsel are directed to appear before the trial Court on. Revision allowed.