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1986 DIGILAW 964 (ALL)

Bhairon Prasad v. Hargovind Gupta

1986-12-18

BRIJESH KUMAR

body1986
Judgment Brijesh Kumar, J. 1. THIS is a civil revision filed by the plaintiff in Regular Suit No. 11 of 1985, pending in the court of 1st Additional District Judge, Hardoi, against the order passed by the trial court, allowing the defendant-opposite parties No. 3 and 4 to plead counter-claim in their written statement and rejecting the objections raised by the plaintiff against the same. 2. THE plaintiff-revisionist filed a suit praying for relief of permanent injunction and for specific performance of an agreement under which it is said that opposite party No. 3 Shanti Swaroop Singh had agreed to sell the house in question to the plaintiff for an amount of Rs. 48,500/-. It appears that the plaintiff-revisionist amended the plaint and added Smt. Umwati Gupta and Smt. Kamlesh Rani Gupta as defendants No. 3 and 4 filed a joint written statement with the averments that they had purchased the property in question by means of a registered sale deed for valuable consideration and by way of counter-claim, they prayed for the relief of possession of the house by eviction of the plaintiff-revisionists. As stated earlier, the plaintiff-revisionist raised objection to the making of counter-claim by the defendants No. 3 and 4, which was overruled by the court below. The only point urged by the revisionist before me is that a counterclaim is permissible only in suits for recovery of money under Order VIII, Rule 6 CPC. It has been submitted that in no other case of any nature, counter claim is permissible. In support of his contention, the revisionist has placed reliance upon sub-rule (1) of Rule 6 of Order VIII, CPC which reads as follows :- "(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. " 3. " 3. AGAINST the submission made on behalf of the revisionist, the learned counsel for the opposite parties has submitted that counter-claim in any suit, not necessarily in a suit for recovery of money alone, is permissible under Order VIII, Rule 6-A CPC. Rule 6-A of Order VIII CPC reads as follows :- "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 counter-claim 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 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 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." A perusal of Rule 6 of Order VIII CPC leaves no room for doubt that a set-off can be claimed only in respect of a suit for recovery of money as the nature of suit has been specified in Rule 6. However, so far Rule 6-A of Order VIII CPC is concerned, nature of suit has not been specified therein. In this connection, the learned counsel for the revisionist has placed reliance upon Rule 6-F of Order VIII CPC which reads as follows :- "6-F. Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's 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." Order XX Rule 19 CPC has also been referred to by the revisionist which reads as follows :- "19. (1) Where the defendant has been allowed a set-off or counter-claim against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. (2) Any decree passed in a suit in which a set-off or counter-claim is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off or counter-claim had been claimed. (3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise." 4. ON the basis of Rule 6-F of Order VIII and Rule 19 of Order XX CPC, it has been submitted that in a case where set-off or counter-claim is preferred, any balance which is found due to the plaintiff or defendant, as the case may be, the Court may give judgment to the party entitled to such balance and the decree shall state the amount found due in favour of the plaintiff or the defendant. The submission, therefore, which has been advanced by the revisionist, is that it is evident that the counter-claim under Rule 6-A of Order VIII CPC is confined to the claim of amount of money i.e. to say in respect of a suit which is for recovery of some amount of money. In support of his contention, the revisionist has placed reliance upon Jaswant Singh v. Smt. Darshan Kaur, AIR 1983 Patna 132. It is a Division Bench decision where it has been held that a counter-claim is permissible only in a suit for recovery of money. On behalf of the opposite parties, reliance has been placed upon Raman Sukumaran v. Velayudhan Madahavan, AIR 1982 Kerala 253. It is a Single Judge decision where it has been held that under Order 8 Rule 6-A CPC, counter-claim is maintainable even in suits other than for recovery of money. 5. THE learned counsel for the revisionist has submitted that the trial court erred in not following the view taken by the Division Bench of Patna High Court in the case of Jaswant Singh (supra). 5. THE learned counsel for the revisionist has submitted that the trial court erred in not following the view taken by the Division Bench of Patna High Court in the case of Jaswant Singh (supra). In that case while coming to the conclusion that counter-claim is permissible only in suits for recovery of money, much weight was given to the provisions contained in Order VIII, Rule 6-F and Order 20 Rule 19 CPC. On the basis of above provisions, it has been inferred that the intention was to confine the scope of Rule 6-A of Order VIII CPC to money suits alone. Another factor which has been taken into account is that whereas Rule 6 provides certain restrictions and conditions under which alone a set-off can be pleaded but Rule 6-A does not provide any such restrictions. Therefore, in case it is accepted that counter-claim can be pleaded in suits of all nature, then any type of counter-claim would become permissible whether connected or not connected with the subject matter of the suit at all. It has also been observed that probably provision for counter-claim has been introduced by amendment to meet the situation in certain cases where the amount claimed by the defendant in defence was more than the amount claimed by the plaintiff. In those cases previously the Court had no powers to decree the amount determined in favour of the defendant in excess of the claim of the plaintiff. But now the Court has been given that jurisdiction. THE above reasons given in Jaswant Singh case (supra) have been pressed as arguments on behalf of the revisionist. 6. WITH due respect I am unable to subscribe to the view taken by the Patna High Court in the case of Jaswant Singh (supra). From a bare perusal of the provisions contained in Rules 6 and 6-A of Order VIII CPC, it becomes evident that while under Rule 6, nature of the suit, in which the plea of set-off can be raised, is specified but for making a counterclaim, no restriction has been placed as regards nature of the suit If the object, in introducing Rule 6-A was to avoid multiplicity of suits and final determination of rival claims of the parties to the suit, then it would hardly serve any purpose if the benefit of counterclaim is confined to suits for recovery of money alone. There is nothing to indicate that nature of suit as described in Rule 6 is to be imported by implication in Rule 6-A as well. In Rule 6-A, the words, "......in addition to his right of pleading set off under Rule 6......" only mean that in money suits as well "counter-claim" can be pleaded besides raising plea of set off as specifically provided under Rule 6. It does not mean that counter-claim can be pleaded only in suit where set off can be pleaded. In other words, what is meant to be provided is that applicability of Rule 6-A is not barred to those cases which are covered by Rule 6, only because Rule 6 is specific about suits for recovery of money. In my view, Rule 6-F of Order VIII and Rule 19 of Order XX will not control or restrict the scope of Rule 6-A or Order VIII CPC. All that is required by the aforesaid two provisions is that in a particular type of suits, because of its nature, namely, for recovery of money, the court will determine the amount found due in favour of any of the two parties and that amount shall be stated in the decree which is passed. It does not mean that there is any implied bar or prohibition to the courts to entertain counter-claim in suits other than for recovery of money, i. e. in which any amount is not to be determined or to be stated in the decree. It may not have been thought necessary to provide form of decree in which it is to be passed, in all types of suits, nor perhaps it could have been possible to do so. In any case, if at all, it can only be said to be an omission and not implied exclusion of the jurisdiction of the court in entertaining counter-claim in suits other than money suits. However, sub-rule (2) of Rule 6-A of Order VIII CPC provides that counter-claim has same effect as a cross-suit, so that the court may pronounce a final judgment in the same suit both on the original claim and the counter-claim. I, therefore, find that Rule 6-F of Order VIII and Rule 19 of Order XX CPC do not provide safe clue to interpret the scope of Rule 6-A of Order VIII CPC. 7. I, therefore, find that Rule 6-F of Order VIII and Rule 19 of Order XX CPC do not provide safe clue to interpret the scope of Rule 6-A of Order VIII CPC. 7. THE next argument is that since no restrictions have been mentioned in Rule 6-A of Order VIII CPC, then any kind of claim may be pleaded by the defendants whether connected or unconnected with the question involved in the suit. I am afraid, this apprehension is not well founded. True the word 'counter-claim' has not been defined in the CPC, but from the very nature of the term itself, it is clear that it is kind of a claim which counters the claim raised against a person and negatives the plaintiff's claim upon which depends the relief which is also prayed for in his favour by the defendant against the plaintiff. Unless the counter-claim is connected in any manner with the claim raised in the plaint, it may not be capable of countering, resisting, opposing or negative the claim of the plaintiff. An unconnected claim will not be a counter-claim and a suit, if filed, in respect thereof may not have the character of a cross-suit Sub-rule (2) of Rule 6-A of Order VIII CPC provides that counter-claim shall have the same effect as a cross-suit. Therefore, it is not open to say that any unconnected claim can be raised or pleaded as a counter-claim. 8. IN the case of Raman Sukumaran (supra), the view taken by the Hon'ble Single Judge of Kerala High Court seems to be more acceptable. The Court in that case had taken note of the fact that even prior to the amendment, namely, prior to introduction of Rule 6-A of Order VIII CPC, it was permissible to raise a counter-claim by a defendant in suits other than money suits. IN that connection, the Court has placed reliance on Laxmidas v. Nanabhai, AIR 1964 SC 11 . Another decision referred to in that judgment is that of Calcutta High Court in Daga Films v. Lotus Production, AIR 1977 Calcutta 312. IN this case, the question of scope of Rule 6-A was not directly involved. However, it was referred to only to indicate that counter-claim had been allowed to be raised in suits other than money suits. Another decision referred to in that judgment is that of Calcutta High Court in Daga Films v. Lotus Production, AIR 1977 Calcutta 312. IN this case, the question of scope of Rule 6-A was not directly involved. However, it was referred to only to indicate that counter-claim had been allowed to be raised in suits other than money suits. In view of the provisions contained in Rule 6-A of Order VIII CPC and the discussion held above, I come to the conclusion that it is permissible to plead counter-claims in suits other than suits for recovery of money as well. Rule 6-A of Order VIII CPC, as indicated earlier also, does not restrict the nature of the suit to which it is applicable and further there remains no scope for ambiguity when it has been provided that a defendant may set up any right or claim by way of counter-claim. I, therefore, find no force in the revision which is liable to be dismissed. 9. THE revision petition is dismissed with costs. THE order of stay of proceedings is discharged. Revision dismissed.