Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 15 (JK)

Narayan Dutt v. Subhash Chander

2001-01-27

A.M.MIR

body2001
1. This Civil Second Appeal is directed against a judgment and decree dated: 30-08-2000 passed by Addl. District Judge Resai. Both the courts below have returned concurrent findings on factual issues like status of the appellant (declared him to be a licensee). The only question of law which seemed to be substantial to the court was one formulated on 14-09-2000, as under:- "Do the provisions of counter claim by defendant contemplated in Rule 6-A of Order 8 C.P.C. also relate to suits which are not money suits?" Mr. S.S. Lehar, appearing for the appellants, has painstakingly dwelt upon the general principles laid down by Rule 6 of Order 8 C.P.C. which relates to "set off. According to him this rule relates to money suits only and even after incorporation of Rule 6-A to G, which came into force with effect from 15-08-1983, the principle of set off does not undergo any change and must relate to money suits only. In that behalf he has laid much stress on Rule 6-F (supra). He has tried to impress upon the following expression of Rule 6-F: "And if 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." He articulately tried to suggest that the word "balance" must connect a money glance only and cannot be perceived with respect to any immovable property like the one invoked in the present suit. 2. I have registered this argument earnestly. This is not for the first time that Rule 6-A has came up for interpretation. Same came up before different High Courts of the country in the following cases also: AIR 1994 Bombay 196 AIR1988Ph.& Haryanan 38. AIR1982 Kerala 253. AIR 1983 Patna 132. 3. High Courts of Bombay, Punjab & Haryana and Kerala have held that after the interpretation of Rule 6-A, the principle of counter claim is permissible in suits other than money suits also. The Patana High Court, however, took a divergent view, which is projected by Mr. Lehar. This divergence was put at rest by an authoritative judgment of the Supreme Court delivered in Jagmohan Chawala and another Vs. Dehra Radna Swami Satsang and others, reported in AIR 1996 Sc 2222. The Patana High Court, however, took a divergent view, which is projected by Mr. Lehar. This divergence was put at rest by an authoritative judgment of the Supreme Court delivered in Jagmohan Chawala and another Vs. Dehra Radna Swami Satsang and others, reported in AIR 1996 Sc 2222. Their lordships of the Apex Court have discussed whole of the law relating to counter claims, after 1983 amendment and finally held that the object of the amendment by introducing Rule 6-A to 6-G is to confer a statutory right to the defendant to set up a counter claim, independent of the claim on the basis of which the plaintiff laid the suit. The fiction of law relating to counter claim was amplified so as to discourage multiplicity of suits and enable a civil court to deliver judgments on the strength of counter claims, which not only arise out of a cause of action in its strict sense but which are connected thereto. In this behalf the judgment of the Supreme Court is quite lucid and exhaustive. 1, would, therefore, place on record para 5 of this judgment in verbatim so as to clinch all the issues raised by Mr. Lehar and to ward off all the doubts which may arise in anybodys mind. Para 5 reads as under:- "The question, therefore, is: whether in a suit for injunction, counter claim or injunction in respect of the same or a different property is maintainable? whether counter claim can be made on different cause of action? It is true that preceding CPC Amendment Act 1976, Rule 6 of order 8 limited the remedy to set off or counter claim laid in a written statement in a money suit. By CPC Amendment Act, 1976, Rules 6-a to 6-G were brought to statute. Rule 6-A (1) provides that a defendant may, in addition to his right of pleadings 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 has expired. Whether such claim is in the nature of a claim for damage or not. Whether such claim is in the nature of a claim for damage or not. A limitation put in entertaining the counter claim is as provided in the proviso to sub-rule (1), namely the counter claim shall not exceed the pecuniary limits of the jurisdiction of the court. Sub-rule (2) amplifies that 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 as on the counter claim. The plaintiff shall be given liberty to file a written statement to answer the counter claim of the defendant within such period as may be fixed by the court. The counter claim is directed to be treated, by operation sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this court in Laxmi Das Dehyabhai Kabarwalaya Vs. Nanabhai Chunilal Kabarwala(1964)2CSR567-(AIR 1964 SC 11), had come to consider the case of suit and cross suit by way of counter claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of the partner in the partnership and thereby decree for settlement of accounts of was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter claim as a cross suit. The trial court dismissed the suit and the counter claim. On appeal, the learned Single Judge accepted the counter claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal per majority, this court had accepted the respondents plea in the written statement to be a counter claim for settlement of their claim and defence in written statement as a suit. The counter claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. On appeal per majority, this court had accepted the respondents plea in the written statement to be a counter claim for settlement of their claim and defence in written statement as a suit. The counter claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits decree must be conformable to Order 20 Rule 18 CPC but the object of the amendments introduced by rules 6-A to 6-G are conferment of a statutory right to the defendant to set up a counter claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of rule 6-A, the language is so coached 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. 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 arise need not necessarily arise from or have 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 set up 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 a 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 proceedings and needless protection, the legislature intended to try both the suits and the counter claim in the same suit as suit and cross suit and have then disposed of in the same trial. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceedings and needless protection, the legislature intended to try both the suits and the counter claim in the same suit as suit and cross suit and have then 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 dependent 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. Opportunity also has been provided under rule 6-C to seek deletion of the counter claim. It is seen that the trial court had not found it necessary to delete the counter claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of the counter claim. Nonetheless, in the counter suit, both the claim in the suit and the counter claim could be tried and decided and disposed of in the same suit. In Mahindra Kumar Vs. State of Madhya Pradesh, (1987) 3 SC 265, (AIR 1987 SC 1395) where a Bench of two Judges of this court was to consider the controversy, held that since the cause of action for the counter claim had arisen before filing of the written statement, the counter claim was maintainable. The question therein of limitation with which we are not concerned in this case. Thus considered we find that there is not merit in the appeal." 4. The argument of Mr. Lehar stands already answered in the above judgment, which makes it clear that rule 6, after its amendment does not only relate to money suits but also to suits other than money suits. The counter claim per necessity does not require to relate to the cause of action projected by the plaintiff in the original suit but can relate to any other cause of action connected with the property. The possible limitations, which the amended rule should be taken to have laid, are those of jurisdiction and period of limitation. The counter claim per necessity does not require to relate to the cause of action projected by the plaintiff in the original suit but can relate to any other cause of action connected with the property. The possible limitations, which the amended rule should be taken to have laid, are those of jurisdiction and period of limitation. This judgment also covers the ancillary argument of Mr. Lehar when he argued that in a suit for permanent injunction a claim of possession cannot be set up by way of a counterclaim. I regret my inability to fall in line with Mr. Lehar because on facts he is not correct. The relief sought by the respondent, by way of counter claim, was one of a mandatory injunction and not of possession. So far as that relief is concerned the opening sentence of the Supreme Court judgment reads as under:- "In a suit for injunction, a counter claim for injunction in respect of the same or a different property is maintainable." That must clinth the argument of Mr. Lehar. Even if that sentence would not exist, I am of the firm view that because of the incidity of the judgment, reproduced above, any cause of action that would have accrued to the defendant in respect of the property could have been claimed by way of a counter claim. That seems to be the pity and substance of the Supreme Court judgment. 5. Before parting with the judgment, I would like to place on record the anxiety shown by Mr. Lehar in respect of, what he calls, as a violation of Court Fees Act. He has urged that by allowing any type of relief to be set up by way of a counter claim the object of the Court Fee Act will be thwarted. 1 again do not agree because on facts again Mr. Lehar is not correct. The defendant has paid the requisite court fee on the relief of mandatory injunction and even otherwise a judgment of a Division Bench of this Court delivered in a case titled Milkha Singh and others Vs. Th. Dena and others, reported in AIR 1964 J&K 99 has authoritatively held that a suit for injunction against a licensee, whose lincence has been terminated by a valid notice, is maintainable. 6. Th. Dena and others, reported in AIR 1964 J&K 99 has authoritatively held that a suit for injunction against a licensee, whose lincence has been terminated by a valid notice, is maintainable. 6. On the strength of the observations made above, I find the substantial question of law formulated by this court having been answered. I, therefore, find no merit in this appeal, which is accordingly dismissed, with costs. Let a decree be drawn by the Registry accordingly. 7. Mr. Lehar, makes a prayer that his client be allowed three months time to vacate the premises as he to make an alternative arrangement. Mr. L. K. Sharma, has no objection to such a prayer being allowed. Therefore this judgment and decree should not be executed till 27th of April, 2001. Meanwhile, the appellant should not sublet or part with the premises or otherwise change its status.