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2005 DIGILAW 338 (GAU)

Jhunu Das v. Purnima Debnath

2005-04-28

body2005
ORDER 1. The respondents herein filed the Title suit No. 5 of 2004 in the Court of Civil Judge, Jr. Division, West Tripura, Agartala against the petitioner herein for specific performance of contract for sale of homestead land of the petitioner. After receiving summon from the Court the petitioner who is a lonely lady aged more than 70 years and suffering from cancer could realize that the respondents by fraud obtained her signature on the agreement for sale which she believed to be an agreement for tenancy. 2. The respondents being husband and wife looked after the petitioner and in due course attained her trust. They approached her to enter into an agreement of tenancy of constructing a building and believing them she executed the agreement which was for sale. Shocked as she was, she filed a writ ten statement in the said suit and along with it she filed a written counter claim under Order VIII, Rule 6 A CPC for a decree quashing the agreement dated 28-11-2003 which was the result of fraud and deception. The said counter claim was registered and numbered as Title Suit No. 27 (Counter Claim) of 2004 arising out of Title Suit No. 5 of 2004 and both were taken together for hearing. But the respondents who resisted the counter claim by filing a written statement raised preliminary issue regarding maintainability of the counter claim. The trial Court heard on the question of maintainability and by impugned order dated 24-8-2004 dismissed the counter claim as not maintainable. The present writ petition under Article 227 of the Constitution is directed against the said order on the ground that the trial Court has committed a manifest error of law leading to serious miscarriage of justice. 2A. The respondents contested the writ petition by filing affidavit-in-opposition. They contended that there was an agreement for sale of the lands which was executed by the petitioner with full knowledge and the story of fraud or deception is totally concocted. The relevant part of their contention which relates to the present controversy is that, the counter claim raised separately under Order VIII, Rule 6A is not legally maintainable. 3. I have heard Mr. P. Roy Barman, learned counsel for the petitioner and Mr. D. R. Chowdhury, learned counsel for the respondents. 4. The relevant part of their contention which relates to the present controversy is that, the counter claim raised separately under Order VIII, Rule 6A is not legally maintainable. 3. I have heard Mr. P. Roy Barman, learned counsel for the petitioner and Mr. D. R. Chowdhury, learned counsel for the respondents. 4. The only question which falls for consideration is whether a counter claim can be separately raised or whether it should be a part of the written statement. Order VIII Rule 6A is noted below for appreciation of the controversy :-- 6A : 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 counter claim is in the nature of a claim for damages or not. 5. By the impugned order, the trial Court dismissed the counter claim only on the ground that it was not set up in the written statement itself which the defendant-petitioner filed in the Title Suit No. 5 of 2004. In support of this finding it referred to the decision of the Apex Court in Gurbachan Singh v. Bhag Singh reported in AIR 1996 SC 1087 and in Jagmohan Chawla v. Dera Radha Swami Satsang reported in AIR 1996 SC 2222 . Learned counsels for the contending parties relied on these two decisions but with separate interpretations. While the submission advanced by Mr. Roy Barman is that the above provision of the CPC if read in the light of the decisions made by the Apex Court is bound to lead to the irresistible conclusion that the counter claim must be separately raised and cannot be a part of the written statement. Mr. Chowdhury, on the other hand, submits that the conclusion should be quite different and that the intention of the Legislature being to prevent multiplicity of the legal proceeding in enacting Rule 6A there is no scope to hold a view that every such counter claim shall be separately registered as a separate suit. Mr. Chowdhury, on the other hand, submits that the conclusion should be quite different and that the intention of the Legislature being to prevent multiplicity of the legal proceeding in enacting Rule 6A there is no scope to hold a view that every such counter claim shall be separately registered as a separate suit. Thus, the controversy is relating to the form of the counter claim, whether it should be within the written statement to be filed by the defendant or it can be separately raised. There is no dispute that the defendant-petitioner has a right to raise a counter claim within the meaning of the above provision. 6. A plain reading of Rule 6A(1) brings into focus the words "before the defendant has delivered his defence or before the time limited for delivering his defence has expired" which necessarily imply that such counter claim relating to the cause of action which had arisen before or after filing of the suit should be filed by the defendant before he has delivered his defence or before the time for delivering his defence has expired. The defence is delivered in every suit only by filing written statement. The presence of the word 'before' does not convince me with the submission of Mr. Chowdhury that the counter claim can be raised only in the written statement not before filing of written statement. The relevant part of the decision of the Apex Court in Jagmohan Chawla AIR 1996 SC 2222 (supra) reads thus : (para 5) 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. 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 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 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 the duty to aver 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 Gurbachan Singh : AIR 1996 SC 1087 (supra) the Apex Court observed in para 3 as follows : 3. It is true that Rule 6A(1) was introduced by Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter claim or set off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the proceeding, right to the defendants to raise the plea of set off in addition to a counter claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter claim or set off had accrued to defendant either before or after the filing of the suit. 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. Further limitation was that the counter claim should not exceed the pecuniary limits of the jurisdiction of the Court. Further limitation was that the counter claim should not exceed the pecuniary limits of the jurisdiction of the Court. In other words by laying the counter claim pecuniary jurisdiction of the Court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter claim beyond its pecuniary jurisdiction. 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. 7. The above two decisions particularly the decision in Jagmohan Chawla (supra) make it abundantly clear that the counter claim is to be treated as a cross suit with all the indicia of pleadings as the plaint including the duty to aver the cause of action and also payment of requisite Court fee thereon and both the suit and the counter claim in the same suit as suit and cross suit have to be disposed of in the same trial. 8. In view of the law laid down by the Supreme Court in the above two decisions, there is no scope of two opinions that the counter claim has to be registered as a cross suit to be disposed of in the same trial. The impugned order is, therefore, found to be not sustainable in law and is, therefore, set aside. The trial Court shall register the counter claim as a cross suit and proceed for disposal of both the suit and the counter claim in the same trial. 9. This writ petition is, therefore, disposed of to the extent indicated above. No cost.