Sukhalal v. Munsiff, Cherthalla — 1996 DIGILAW 527 (KER)

Judgment :- Abdul Gafoor, J. This is a petition under Art.227 of the Constitution of India. Challenge is against Ext. P8 judgment, Ext. P9 decree and Ext. P10 order directing delivery. Ext. P8 is a judgment in a counter claim filed by the 3rd respondent in a suit filed by the petitioner as O.S.807/91 in the Munsiff Court, Cherthala. The petitioner remained ex-parte whereas the defendant filed affidavit in support of the counter claim. Accordingly, a judgment was rendered in the counter claim allowing the 3rd respondent to recover item No. 2 shed scheduled in the counter claim and Rs. 850/- with mesne profit at the rate of Rs. 300/- per annum from the date of counter claim till realisation with 6% interest. A decree was drawn in terms of the judgment as per Ext. P9. In execution thereof, as per Ext. P10 order, the petitioner was directed to deliver the said shed to the 3rd respondent over-ruling the objection that he had filed an application to set aside the ex-parte decree. 2. The petitioner is a tenant under the 3rd respondent company who had initiated proceedings to evict the petitioner as RCP 29/87 in the Rent Control Court, Cherthala, Alleging that the 3rd respondent is making hasty steps to evict the petitioner forcibly from the plaint schedule building and attached shed therein, the petitioner instituted the suit for a permanent injunction restraining from evicting him from the plaint schedule building and from its premises forcibly. The 3rd respondent filed Ext. P2 written statement on 18.10.91. It is stated in paragraph 13 thereof that "Today I have filed a petition in this case under O. VIII R.6A, O. VHA R.10.1 R.10 and S.151 of CPC against the plaintiff and Sri. Rajeeva Panicker for recovery of the shed referred to in this suit." Ext. P3 is that counter claim filed by the 3rd respondent wherein the petitioner is one among the counter petitioners along with one Rajeeva Panicker alleging that without the knowledge of the 3rd respondent landlord the petitioner had inducted the said Rajeeva Panicker as sub lessee or by assignment of lease. Ext. P3 counter claim was also filed on 18.10.91 along with the written statement. During the trial, the petitioner remained ex-parte, whereas the counter claim was pursued by the 3rd respondent. That resulted in Ext. P8 judgment, Ext. P9 decree and Ext. Ext. P3 counter claim was also filed on 18.10.91 along with the written statement. During the trial, the petitioner remained ex-parte, whereas the counter claim was pursued by the 3rd respondent. That resulted in Ext. P8 judgment, Ext. P9 decree and Ext. P10 order in execution directing delivery of the shed mentioned in Ext. P3 counter claim. 3. Instead of appealing against Exts.P8 and P9, the petitioner has approached this court under Art.227 of the Constitution alleging that Ext. P8 judgment and Ext. P9 decree are "totally devoid of jurisdiction and beyond the bounds of respondent No. 1" namely the Principal Munsiff, Cherthala. It is submitted that even if the petitioner had remained ex-parte, the 1 st respondent ought to have applied his mind to the facts and the question of law involved in the case. The petitioner submits that Ext. P3 is not a counter claim as contemplated in O. VIII R.6A of the CPC. The petitioner further submits that "the so called counter claim is not in respect of any of plaint items and against the claim of plaintiff, but for eviction on the ground of alleged trespass on item No. 2 Scheduled to Ext. P3". He further submits that "since the counter claim contemplated under law is against the claim of the plaintiff, another item of property ought not to have been allowed to be brought in and relief granted in respect of the same". 4. O. VIIIR. 6A reads as follows: "6A. 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 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 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 counterclaim, (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". This enables a defendant to set up a counter claim against the plaintiff of "any right or claim in respect of a cause of action accruing to the defendant against the plaintiff". This can be in respect of a cause of action accruing before the defendant has delivered his defence or before the time limited for delivering his defence has expired. As per sub-s.(2) it will have the same effect of cross-suit to enable the court to pronounce a final judgment both on the original claim and on the counter-claim. The plaintiff will have liberty to file a written statement in answer to the counter-claim. Counter claim will be governed by the rules applicable to the plaint. 5. The petitioner submits that Ext. P3 counter-claim is not a part of written statement. He submits that counter-claim shall find place in the written statement itself. R.6A does not contemplates that the counter-claim by the defendant shall be in the written statement itself. The only limitation is that it shall be in respect of a cause of action accruing to the defendant before the defendant has delivered his defence or before the time limited for delivering his defence has expired. As mentioned above, Ext. P2 written statement of the 3rd respondent specifically states that "Today I have filed a petition in this case under O. VIII R.6A...". Thus, the counter claim proceeds the written statement and both are filed on the same day. Therefore, Ext. P3 counter is claim in respect of a cause of action accrued to him within the time limit provided for in Order VIIIR. 6A. There is no requirement in the said rule that the counter claim should form part of the written statement. In this case, the written statement made mention of the counter claim that had been filed. P3 counter is claim in respect of a cause of action accrued to him within the time limit provided for in Order VIIIR. 6A. There is no requirement in the said rule that the counter claim should form part of the written statement. In this case, the written statement made mention of the counter claim that had been filed. Thus, the 3rd respondent had, in preferring the counter claim, satisfied the requirements under O. VIII R.6A. Therefore, there is no basis in the submission of the petitioner that Ext. P3 is not a counter claim as contemplated under the said rule. The observation in Gurbachan Singh v. Bhag Singh and others (AIR 1996 SC 1087) that, "the limitation was that the counter claim or set off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter claim is in the nature of a claim for damages or not". does not exclude a situation of filing a counter claim along with the written statement, mentioning about it in the written statement. 6. The counter claim has to be dealt with by the court trying the suit. When a defendant raises a counter claim, that court is bound to adjudicate that claim provided it is within its pecuniary jurisdiction. In that circumstances, the petitioner cannot content that adjudication of the counter claim by Exts. P8 and P9 and the consequential order in execution as contained in Ext. P10 is devoid of jurisdiction and beyond the bounds of the 1st respondent, the Principal Munsiff court. 7. When the petitioner remained ex-parte, the 3rd respondent pursued his counter claim. He substantiated his claim by means of an affidavit and accepting that affidavit the counter claim was decreed as per Exts. P8 and P9. Thus, even in the absence of the plaintiff, the court had considered the counter claim in accordance with law. So, there is no merit in the contention that the 1st respondent failed to apply its mind to the facts of the case and the question of law raised in the case. 8. P8 and P9. Thus, even in the absence of the plaintiff, the court had considered the counter claim in accordance with law. So, there is no merit in the contention that the 1st respondent failed to apply its mind to the facts of the case and the question of law raised in the case. 8. The only contention of the petitioner remaining to be dealt with is that "the so called counter claim is not in respect of any of plaint item and against the claim of the plaintiff" and that "another item of property ought not to have been allowed to be brought in". The petitioner has cited several decisions in his attempt to substantiate the contention. I need not go into all those decisions, in the light of a very recent Supreme Court decision reported in Jag Mohan Chawla v. Dem Radha Swami Satsang (AIR 1996 SC 2222 at 2223 ). Dealing with this point, the Supreme Court held: "In sub-r.(1) of R.6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right of claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may setup a cause of action which has accrued to him even after the institution of the suit. The counter claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to avert his cause of action and also payment of the requisite court fee thereon. The defendant may setup a cause of action which has accrued to him even after the institution of the suit. The counter claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to avert his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, the legislature intended to try both the suit and the counter claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment". This dictum repels the contention of the petitioner. 9. The counter claim has to be treated as a suit instituted by the defendant. In such circumstances, even if a person other than the plaintiff is brought in the counter claim, the plaintiff will not be prejudiced. He will have his own opportunity to defend it. In this case, by Ext. P8 judgment and Ext. P9 decree the shed which forms the subject matter of the counter claim is ordered to be delivered by the petitioner to the 3rd respondent. So, the fact that one Rajeeva Panicker is also shown in the counter claim does not matter much. 10. Thus, in every respect, the 1st respondent was exercising his jurisdiction. He has not gone beyond the jurisdiction vested in him. When there is no jurisdictional error, the petitioner cannot resort to a remedy under Art.227 of the Constitution of India more so when he has a right of a full-fledged appeal against the judgment and decree impugned. In the above circumstances, there is no merit in any of the contentions raised by the petitioner. Original petition fails. Dismissed. No costs.