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2008 DIGILAW 1322 (PNJ)

Ram Narain v. Jagan Lal

2008-08-05

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - This revision petition under Article 227 of the Constitution of India has been moved to challenge the order dated 12.6.2003 attached as Annexure P-1 passed by the learned trial Court and the order dated 1.5.2006 attached as Annexure P-2, passed by the learned lower Appellate Court on an application under Order 39 Rules 1 & 2 C.P.C. moved by the petitioner and also order passed on application made by respondent No. 9 in counter claim filed to the suit by the petitioner seeking mandatory injunction. 2. The plaintiff petitioner had filed a suit for declaration and permanent injunction claiming that the sale deed executed in favour of the defendant was fake transaction and was not binding on the rights of the plaintiff and also claimed permanent injunction restraining the defendant from interfering in the peaceful possession. Along with the said suit an application under Order 39 Rules 1 & 2 C.P.C. was also moved by the petitioner. 3. The learned Courts below on the basis of the pleadings and the documents placed on record came to the conclusion that on the date of filing of the suit the petitioner was not in possession of the property in dispute. 4. The learned Courts below have also recorded a finding that mere agreement to sell did not give any right in the property as was claimed by the petitioner. In view of the finding recorded, the learned Courts below came to the conclusion that no prima facie case was made out in favour of the petitioner to claim injunction against the defendants. The Court also came to the conclusion that the balance of convenience was not in favour of the petitioner but in favour of defendant No. 9. The application moved by the petitioner was, thus, rejected by the learned trial Court and affirmed by the learned lower appellate Court in appeal. Defendant No. 9 contested the suit and also filed a counter claim claiming mandatory injunction for restoration of possession illegally taken from him. 5. Defendant No. 9 also moved an application under Order 39 Rules 1 & 2 C.P.C. seeking interim mandatory injunction directing the plaintiff to hand over the possession of the shop as he was illegally dispossessed by the petitioner though he was tenant over the shop in dispute. 5. Defendant No. 9 also moved an application under Order 39 Rules 1 & 2 C.P.C. seeking interim mandatory injunction directing the plaintiff to hand over the possession of the shop as he was illegally dispossessed by the petitioner though he was tenant over the shop in dispute. The said finding was based on the finding recorded by the Court in the earlier proceedings where defendant No. 9 was held to be tenant of the property and there was no material on record to show as to how he was dispossessed. Thus, the learned Courts below came to the conclusion that defendant No. 9 was illegally dispossessed after filing of the suit and ordered the restoration of possession to defendant No. 9 in the application moved by him under Order 39 Rules 1 & 2 C.P.C. 6. The learned counsel for the petitioner has not been able to controvert the finding recorded by the learned Courts below. He has also not been able to challenge the dismissal of the application of injunction moved by the petitioner. 7. Mr. C.R. Dahiya, learned counsel appearing on behalf of the petitioner, however, challenged the order passed by the learned Courts below accepting the application of injunction moved by defendant No. 9. The contention of the learned counsel for the petitioner is that the impugned order allowing the application of defendant No. 9 is contrary to the provisions of Order 8 Rule 6-A C.P.C. Order 8 Rule 6-A of the Code of Civil Procedure reads as under :- "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; (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 the rules applicable to plaints." 8. The contention of the learned counsel for the petitioner is that the bare reading of provisions of Order 8 Rule 6-A C.P.C. would show that the counter claim and the suit are to be decided at the same time and, therefore, it was not open to the learned Courts below to accept the application for injunction moved by defendant No. 9 while the suit of the petitioner plaintiff is still pending adjudication. The learned counsel for the petitioner in support of this contention placed reliance on the judgment of the Honble Bombay High Court in the case of Barthels and Luders GmbH v. M.V. "Dominique", AIR 1988 Bombay 380. In the said judgment the Honble Bombay High Court has been pleased to lay down as under : "6. Under Order 8, Rule 6A of the Code of Civil Procedure a defendant in a suit may 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. The proviso set out that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Under Order 8 Rule 6, therefore, once a suit has been filed the defendant can set up by way of counter-claim any right or claim against the plaintiff which arises before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter-claim may be a claim in the nature of damages also. The only restriction as set out in the provision is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a united proceeding. The only restriction as set out in the provision is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a united proceeding. Although Order 8, Rule 6A provides that the counter-claim is to be treated as a plaint and is to be governed by the rules applicable to the plaints, it is not to be treated as a completely separate suit. In fact under Order 8, Rule 6A sub-rule (2) the counterclaim is to be treated 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, so that both the proceedings can be disposed of by a common judgment." 9. On consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioner. The counter claim filed by respondent No. 9 is also to be adjudicated finally. The learned trial Court by way of interim measure has allowed the application filed by respondent No. 9 filed under Order 39 Rules 1 & 2 C.P.C. and, therefore, it cannot be said that the learned trial Court has disposed of the counter-claim in absence of any decision on the suit filed by the plaintiff. 10. The learned counsel for the petitioner also placed reliance on the judgment of the Honble Supreme Court in the case of Jagmohan Chawla and another v. Dera Radha Swami Satsang and otters, AIR 1996 SC 2222. In support of this contention. The Honble Supreme Court in the case, referred to above, has been pleased to lay down as under : "In a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable. 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. 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. 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 on 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 or 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." The reading of the judgment shows that it has no relevance to the contention raised by the learned counsel for the petitioner, rather the Honble Supreme Court held that the counter-claim filed by the defendant is to be treated as an independent suit which could be filed even on different cause of action. Thus, it was open to the learned trial Court to grant relief to respondent No. 9 on an application moved along with counter-claim, which has been done in the present case. No ground for interference is made out. Dismissed. Petition dismissed.