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2002 DIGILAW 412 (PNJ)

Kulwant Singh v. Gurcharan Singh

2002-04-22

M.M.KUMAR

body2002
Judgment 1. This is a revision petition directed against the order dated 7-3-2002 passed by the Civil Judge (Junior Division) Samrala allowing the application of plaintiff -respondent Nos. 1 and 2 filed under Order VIII, Rule 6-C of the Code of Civil Procedure, 1908 (for brevity, the Code) for exclusion of counter-claim made by defendant-petitioner along with defendant-respondent Nos. 16, 17 and 18. The Civil Judge while allowing the application of plaintiff-respondent Nos. 1 and 2 for excluding the counter-claim set up by defendant-petitioner and defendant-respondent Nos. 16, 17 and 18 recorded the following order : "Heard. I have gone through the judicial file. Perusal of the plaint reveals that the plaintiff has claimed the share of Mukhtiar Singh defendant No. 1 as Joint Hindu Family coparcenary property with a further declaration that the plaintiff has a birth right in the same. He has also claimed the suit properties owned by defendant Nos. 14 to 17 as Joint Hindu Family coparcenary properties and he has further sought the joint possession of the said land. Whereas, the defendant Nos. 14 to 17 while filing written statement, have set up a counter-claim to the effect that the property held by Mukhtiar Singh and Ujjagar Singh is also required to be included in the suit land for granting a decree for joint possession in favour of the defendants. Apparently the properties owned by Ujjagar Singh are not the subject-matter of the present suit against which the defendant Nos. 14 to 17 are set up their counterlaim. The defendant Nos. 14 to 17 have got independent cause of action against the properties owned by Ujjagar Singh and they can file a separate suit seeking declaration in the form that the properties held by Ujjagar Singh were the Joint Hindu Family properties. By way of present counter-claim, the share of the plaintiff in the properties held by Mukhtiar Singh can in no way be set-off against the properties owned by Ujjagar Singh. Hence the claim as put forth by the plaintiff and the another is put forth by defendant Nos. 14 to 17 are divergent and need independent adjudication. Hence the defendant Nos. 14 to 17 in my opinion are required to file a separate suit regarding their claim against the properties held by Ujjagar Singh." 2. Hence the claim as put forth by the plaintiff and the another is put forth by defendant Nos. 14 to 17 are divergent and need independent adjudication. Hence the defendant Nos. 14 to 17 in my opinion are required to file a separate suit regarding their claim against the properties held by Ujjagar Singh." 2. Brief facts of the case necessary for deciding the controversy raised in this revision petition are that plaintiff-respondent Nos. 1 and 2 filed a Civil Suit No. 795 of 7-12-1995 seeking declaration that plaintiffrespondent Nos. 1 and 2 have subsisting interest by birth as coparceners in the Joint Hindu Family coparcenary property of defendant-Mukhtiar Singh son of Punnu s/o Shri Kanha Singh, resident of village Mushkabad, tehsil Samrala, district Ludhiana. It is further claimed that plaintiff- respondent Nos. 1 and 2 are also entitled to the share of defendant-petitioner and defendant-respondent Nos. 16, 17 and 18 they being sons of Mukhtiar Singh, Joint possession of the land was also claimed along with the claim for permanent injunction restraining defendant Mukhtiar Singh, defendant-petitioner and defendant-respondent Nos. 16, 17 and 18 from alienating or mortgaging their share in the disputed property. Defendant-petitioner along with defendant-respondent Nos. 16, 17 and 18 filed their written statement and also set up a counter-claim against the property held by defendant-respondent Ujjagar Singh and his wife..............In order to exclude adjudication on the counter-claim made by defendant-petitioner along with defendant-respondent Nos. 16, 17 and 18, an application under Order VIII, Rule 6-C of the Code was filed which has been allowed. Feeling aggrieved, the defendant-petitioner has approached this Court by filing the present revision petition. 3. Shri K. S. Bassi, learned counsel for the defendant-petitioner has argued that Order VIII, Rule 6-A does not impose any embargo on the light of the defendant-petitioner to set up a counter claim against a co-defendant. He has placed reliance on a Judgment of this Court in the case of Anupama Rubber Pvt. Ltd. V/s. Bata India Limited, 1999 (1) Pun LJ 300. 4. The provisions of Order VIII, Rule 6-A, B and C of the Code may be referred to as it would be necessary to deal with the argument advanced by the learned counsel, Order VIII, Rule 6-A, B and C reads as under : "6-A. Counter-claim by defendant. 4. The provisions of Order VIII, Rule 6-A, B and C of the Code may be referred to as it would be necessary to deal with the argument advanced by the learned counsel, Order VIII, Rule 6-A, B and C reads as under : "6-A. Counter-claim by defendant. (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 counterclaim 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 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 rules applicable to plaints. 6-B. Counter-claim to be stated. Whether any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. 6-C. Exclusion of counter-claim, Whether a defendant sets up a counterclaim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit." 5. Rule 6-A does not leave any manner of doubt that a defendant has been clothed with the right to set up a counter-claim against the claim of the plaintiff. Rule 6-A does not leave any manner of doubt that a defendant has been clothed with the right to set up a counter-claim against the claim of the plaintiff. The only limitation imposed by Rule 6-A is that the cause of action must have accrued to the defendant before the defendant has delivered his defence and the limitation period as prescribed by Art. 113 of the Limitation Act. 1963 (for brevity, "the Act") has not expired. This principle has been laid down by the Honble Supreme Court while interpreting Rule 6-A in Mahendra Kumar V/s. State of M.P.. AIR 1987 SC 1395. 6. The provision of Rule 6-C recognises the right of the plaintiff to apply to the Civil Court for exclusion of counter-claim and also a direction to the defendant to get his counter-claim settled in an independent suit. Therefore, Rule 6 clothes the Court with adequate power to exclude a counter-claim and direct the defendant to file an independent suit in cases where the Court may consider it unfair or where it causes complications and would result in prolonging the trial. 7. The argument of the learned counsel that the plaintiff should first be asked to make a claim against Ujjagar Singh and his wife and then the counter-claim of the defendant-petitioner be allowed to be made cannot be accepted because it is indirect way of setting up a counter-claim against a co-defendant. The averments made in para No. 2 of the counter-claim set up by the defendant-petitioner reads as under : "That in case the locus standi of the plaintiff is proved, the nature of the Joint Hindu Family ancestral coparcenary is established and also the family is held to be coparcenary body with defendant No. 1 as a KARTA of the Joint Hindu Family then in that eventuality the replying defendants would also be entitled from the property which is held in the name of UJjagar Singh-defendant and also the other sons of Mukhtiar Singh and for that purpose the plaintiffs be directed to include the property referred in preliminary objections as required in the name of Ujjagar Singh in the present suit." 8. Therefore, I have no hesitation in rejecting the argument that defendant can set up a counter-claim against a co-defendant because it would unnecessarily cause embarrassment, complication and confusion. Therefore, I have no hesitation in rejecting the argument that defendant can set up a counter-claim against a co-defendant because it would unnecessarily cause embarrassment, complication and confusion. Even otherwise, the Court is clothed with the adequate power by virtue of provision of Order VIII, Rule 6-C of the Code that it can order exclusion of counter-claim, I also do not find any reason to conclude that the defendant-petitioner would suffer any prejudice because permission has been given to the defendant-petitioner to file an Independent suit by setting up his claim against Ujjagar Singh and his wife. 9. In so far as Anupama Rubber Pvt. Ltd.s case (1999 (1) Pun LJ 300) (supra) relied upon by the learned counsel for the defendant-petitioner is concerned, it has no bearing because it only deals with a time-barred counter-claim which was rejected on the ground of limitation. Therefore, the reliance placed by the learned counsel on the judgment in Anupama Rubber Pvt. Ltd.s case (supra) is wholly misplaced. 10. For the reasons recorded above, this revision petition fails and is dismissed. Petition dismissed.