Md. Idris v. Om Prakash Fitkaribal — 1999 DIGILAW 1096 (PAT)

Judgment S.N.Jha, J. 1. This civil revision by the defendant is directed against order dated 6.4.99 in Title Eviction Suit No. 1 of 1994 rejecting his application to decide his counter claim in terms of Order 8, Rule 6A of Civil Procedure Code (in short the Code). 2. The plaintiffs-opposite party have filed the aforementioned suit for eviction of the petitioner from the suit premises on the ground of personal necessity in terms of section 11(1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (in short the BBC Act). In view of the point involved in this revision it is not necessary to set out the plaintiffs case. The defendant in his written statement, which he filed after obtaining leave to contest as required under section 14(4) of the BBC Act, did not dispute the landlord- tenant relationship. He, however, denied the plaintiffs case of bonafide and reasonable requirement of the premises and also took a plea that he had paid sum of Rs. 10,000/- as security deposit and spent sum of Rs.4000/-, in getting a shutter installed in the premlses on the plaintiffs assurance that the amount would be adjusted against future rent. But this was not done despite several requests. The defendant filed a separate application to decide the counter claim unded Order 8 Rule 6A of the Code. By the order dated 2.8.95 the court below refused to entertain the counter claim on the ground that such claim could be claimed only in a money suit. The defendant preferred C.R.No.1333 of 1995 in this Court which was dismissed. He filed a fresh application on 1.7.96 making similar prayer on the strength of subsequent decision of the Supreme Court in Gurbachan Singh V/s. Bhag Singh, AIR 1996 Supreme Court 1087. On the ground that similar prayer had been rejected earlier which was confirmed by the High Court, the court below by the impugned order rejected the application on 6.4.99. 3. Shri Pramod Kumar Sinha, learned counsel for the petitioner, submitted that the court below has failed to exercise jurisdiction vested in it by law by refusing to entertain the counter claim on a wholly erroneous ground. He submitted that although this Court in the earlier civil revision had taken a similar view but in view of the subsequent decisions of the Supreme Court the orders cannot be said to be in accordance with law. He submitted that although this Court in the earlier civil revision had taken a similar view but in view of the subsequent decisions of the Supreme Court the orders cannot be said to be in accordance with law. Counsel placed reliance, apart from the case of Gurbachan Singh v. Bhag Singh (supra), on the case of Jag Mohan Chawla V/s. Dera Radha Swami Satsang, AIR 1996 Supreme Court 2222. 4. Before noticing the facts of the cases relied upon by the counsel for the petitioner and the ratio of the decisions, it would be proper to quote Order 8 Rule 6A of the Code, so far as relevant, as under:- "6-A. Counter claim by defendant (1) A defendant in a suit may, in addition to his right of pleading a setoff 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 but before the defendant has delivered his defence or before the time limit for delivering his defence has expired whether such counter claim is in the nature of a claim for damages or not: Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) ... ....... 5. In Gurbachan Singh vs. Bhag Singh (supra) the suit had been filed for permanent injunction to restrain the defendant from dispossessing the plaintiff from the suit land. In the written statement, the defendant took a plea that the plaintiffs have trespassed into their land to the extent of 3 kanals and they were in its unlawful possession. They raised a counter claim for possession of the land. The trial court dismissed the plaintiffs suit but granted the defendant the decree for possession. The High Court affirmed the judgment. In the Supreme Court it was argued on behalf of the plaintiff that in a suit for permanent injunction counterclaim for possession by the defendant was not maintainable. The Supreme Court noted that prior to amendment of 1976 (Act 104/76) in the Code it was not open to the defendant to set up counter claim except in money suits. In the Supreme Court it was argued on behalf of the plaintiff that in a suit for permanent injunction counterclaim for possession by the defendant was not maintainable. The Supreme Court noted that prior to amendment of 1976 (Act 104/76) in the Code it was not open to the defendant to set up counter claim except in money suits. The Law Commission of India, however, recommended right to the defendants to raise counter claim, in addition the plea of set off under Rule 6 in the same suit, in order to avoid multiplicity of proceeding, irrespective of the fact whether cause of action for the counter claim or set off had accrued to the defendant before or after the filing of the suit, subject to limitation that such counterclaim should not exceed the pecuniary jurisdiction of the Court having noticed the above recommendation of the Law Commission, the Supreme Court observed, "Thus considered, we hold that in a suit for injunction, the counter claim for possession also could be entertained, by operation of Order 8 Rule 6A(1) of CPC". 6. Jag Mohan Chawla vs. Dera Radha Swami Satsang (supra) was also a case of suit for injunction. The defendant in the written statement sought similar relief of permanent injunction against the plaintiff with respect to another land which they had claimed to have purchased. The plaintiff filed additional written statement under Rule 6E with respect to the counter claim. He also filed an application under section 6C to exclude the counter claim from the written statement. The said application was rejected by the trial court as well as the High Court. In the Supreme Court it was argued on behalf of the plaintiff that cause of action in a suit for injunction was a threat of dispossession and interference with the peaceful possession of the plaintiff, and, therefore, the court could not entertain the counterclaim which can be filed only in money suits. Rejecting the contention the Supreme Court observed: "In sub-rule (1) of Rule 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 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. 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 accuring with the defendant" would show that the cause of action from which the counterclaim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit." 7. In view of the above decision of the Supreme Court now it is thus well established that counter claim can be raised in suits other than money suits as well, even on an independent cause of action. 8. The point for consideration is whether the defendant can be allowed to raise counter claim in the nature of money claim under Order 8 Rule 6A of the Code in a suit for eviction on the ground of personal necessity. 9. In my opinion, however widely couched the words of Rule 6A of Order 8 of the Code may be, the defendant cannot be allowed to raise such counter claim which would change the very nature of the suit. In both the cases aforementioned, the suit had been filed for permanent injunction. While in one case the defendant prayed for possession by way of counter claim, in the other case the defendant sought similar relief of permanent injunction, albeit, with respect to another plot of land. The nature of the suit, however, did not change. If in a suit for eviction on the ground of personal necessity or, for that matter, on the ground of expiry of period of tenancy within the meaning of clauses (c) and (e) of section 11(1) of the BBC Act, the defendant is allowed to take the plea that he had paid money to the plaintiff-landlord as advance or something of that kind, it would give a premium to every unscrupulous tenant (unscrupulous in the sense that he would like to hang on in the premises). The court will thereby be compelled to adjudicate upon such claim and the suit would be converted into a virtually money suit. 10. I can visualise a tenant taking a similar plea in a suit for eviction on the ground of default. The court will thereby be compelled to adjudicate upon such claim and the suit would be converted into a virtually money suit. 10. I can visualise a tenant taking a similar plea in a suit for eviction on the ground of default. Such a case may be different. Because it is open to the defendant in such a case not only to deny the plaintiffs case of default or arrear of rent but. also to take defence that he had advanced money or spent money on repairs of the premises with the consent of the landlord and on an understanding that the money so advanced or paid would be adjusted against rent due (as in the present case itself) and, therefore, there was no arrear. He may also raise a counter claim for recovery of the money so advanced or spent. The suit for eviction on the ground of personal necessity or expiry of the period of tenancy, owever, would stand on an entirely different footing. The law provides for a special procedure for disposal of such suits vide the provisions of section 14 of the BBC Act. Allowing such plea to be raised as counterclaim would defeat the object underlying those provisions and, in fact, would be contrary to the legislative mandate. It would also not be in the ends of justice, for it may deprive a bonafide landlord of his right to secure possession of the tenanted premises within reasonable time. In a suit for eviction, generally speaking, the court has to decide only two issues - whether there is landlord-tenant relationship between the parties and secondly, whether the ground of eviction alleged by the plaintiff is made out or not. Except in cases where the tenant claims independent title and the court is of the opinion that the defendants plea is bonafide and not a ploy or pretence and that complicated question of title arise for decision, it is not necessary for the court to travel beyond determination of those two issues. 11. In my opinion, while it is open to a defendant to raise a counter claim on an independent cause of action, he cannot be allowed to do so if that would change nature of the suit itself or result in misjoinder under 0.2 Rule 3 of the Code. 11. In my opinion, while it is open to a defendant to raise a counter claim on an independent cause of action, he cannot be allowed to do so if that would change nature of the suit itself or result in misjoinder under 0.2 Rule 3 of the Code. Even the Law Commission had suggested a rider that such counter claim which would result in ouster of the jurisdiction of the court should not be allowed to be raised. The proviso appended to Rule 6A(1) is the result of the said recommendation. In my opinion, the provision of Order 8 Rule 6A cannot be interpreted in a manner as to give an over-ring effect and the counter claim should therefore be allowed to be raised subject to the provisions of the Code. As the Supreme Court has observed, the provision contained in Rule 6A has been introduced in the Code to avoid multiplicity of the suit but that does not mean that the defendant should be allowed to become the dominus litis relegating the plaintiffs to the background, specilly where the suit has been filed for eviction on the ground of personal necessity. 12. In the above premises, even though the reason assigned by the court below for rejecting the. counter claim is not in accordance with law, I do not find any error in the ultimate order. No ground is, thus, made out for interference by this Court in this case. 13. In the result, the civil revision is dismissed.