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2009 DIGILAW 600 (MP)

Mukund Lal v. Ghanshyam

2009-05-05

A.K.MISHRA, SUSHMA SHRIVASTAVA

body2009
ORDER Mishra, J. -- 1. The defendant Nos. 1 and 2, Mukundlal and Bhagwan Charan have filed the instant writ petition aggrieved by order dated 12.4.2007 by which the counter-claim filed by defendant Nos. 3 to 11 has been allowed. 2. In the plaint the plaintiff-respondent Nos. 1 and 2 have prayed that the disputed property is Joint Hindu Family property of plaintiffs and defendant Nos. 1 to 11. The plaintiffs are also having title and possession. Prayer has been made to dedare the sale-deed executed by defendants No.1 and 2 in favour of defendants No. 15 and 16 to be illegal and void as against the plaintiffs. Further prayer has been made to declare the order dated 24.9.2005 passed by the Collector, District Chhatarpur to be ineffective. Counter claim has been filed by defendants No.3 to 11 for declaring the sale-deed to be illegal and void as against their interest which has been executed by defendants No. 1 and 2 in favour of defendants No. 15 and 16. 3. The trial Court vide order dated 12.4.2007 has overruled the objections raised by defendants No.1 and 2 that counter-claim could not be said to be maintainable inter se the defendants. The trial Court has observed that considering the nature of the suit defendants No.3 to 11 have the right to protect their interest. It has been considered appropriate to try the counter-claim along with the suit in the facts of the instant case. Aggrieved thereby the instant writ petition has been preferred by defendants No.1 and 2. 4. Shri M.L. Jaiswal, learned senior counsel appearing on behalf of petitioners, has submitted that from bare reading of provision of Order 8, Rule 6-A of CPC, it is apparent that counter claim is maintainable by a defendant as against plaintiff not against defendant, thus, counter-claim could not have been entertained at the instance of defendants No.3 to 11 as against defendants No.1 & 2 and 15 & 16. He has placed reliance upon the decision of this Court in Udhavdas Tyagi v. Srimurti Radhakrishna Mandir, Dehrighat [ 2002 (I) MPWN 31 ] and decision of High Court of Patna in Hem Narain Thakur v. Deo Kant Mishra and others [AIR 2000 NOC 23 (Patna) = 2000 AIHC 945]. 5. He has placed reliance upon the decision of this Court in Udhavdas Tyagi v. Srimurti Radhakrishna Mandir, Dehrighat [ 2002 (I) MPWN 31 ] and decision of High Court of Patna in Hem Narain Thakur v. Deo Kant Mishra and others [AIR 2000 NOC 23 (Patna) = 2000 AIHC 945]. 5. Shri Avinash Jargar, learned counsel for respondent-defendants No.1 to 4,6, 7, 10 and 14, has submitted that even if counter-claim filed by defendants No.3 to 11 as against defendants No.1, 2 and 15 & 16 is not maintainable, as per the expression used under Order 8 Rule 6-A of CPC it could have been treated and tried as cross suit and decided along with the instant suit as precisely same relief has been prayed by plaintiffs for declaring the sale-deed to be void. Additional grounds have been raised by defendants No.3 to 11, thus, prayer has been made to treat the counter-claim as a cross suit and to decide the same along with the instant suit. In order to adopt aforesaid recourse he has relied upon the decision of the apex Court in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others, AIR 1964 SC 11 , decisions of this Court in Kartar Singh and others v. Kanhai Singh and others [ 1989 JLJ 461 = and in Bhamri Bai v. Ram Bai [1996 (I) MPWN 19]. 6. We have heard the learned counsel for the parties at length. In order to appreciate whether counter claim inter se defendants is maintainable, we have to consider the provision or Order 8 Rule 6-A of the CPC. The provisions read thus:"6-A. Counter claim by defendant. - (I) A defendant in a suit may, in addition to his right to 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: 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 wri tten 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." It is apparent from the bare reading of aforesaid provision that counterclaim is maintainable by defendants against the claim of the plaintiff not inter se defendants. Same is the view taken by this Court in Udhavdas Tyagi v. Srimurti Radhakrishna Mandir, Dehrighat (supra) and by High Court of Patna in Hem Narain Thakur v. Deo Kant Mishra and others (supra). We have no hesitation to hold that counter-claim filed by defendants No.3 to 11 as against defendants No.1 & 2, 15 & 16 could not be said to be maintainable under Order 8, Rule 6-A of CPC. 7. Now we examine the submission made by Shri Avinash Jargar, learned counsel appearing on behalf or respondents, that in the facts of the instant case as the relief prayed by defendants No.3 to 11 as against defendants No. I and 2 and defendants No. 15 & 16 is similar, as claimed by plaintiffs in the suit, plaintiffs have claimed one of the relief that the sale-deed dated 6.12.2004 be declared illegal and void to the extent of their interest, same is precisely the prayer made by defendants No.3 to 11 against defendants No.1, 2, 15 and 16, the defendants No.3 to 11 want the sale-deed should also be declared void to the extent of their interest. The factual matrix which is required to be considered it going to be more or less the same, in case counter-claim is ordered to be treated as cross suit. In appropriate cases such a direction can be issued, has been settled by the apex Court in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others (supra). The apex Court has laid down thus: "11. The question has therefore to be considered on principle as to whether there is anything in law-statutory or otherwise-which precludes a Court from treating a counter-claim as a plaint in a cross suit. The apex Court has laid down thus: "11. The question has therefore to be considered on principle as to whether there is anything in law-statutory or otherwise-which precludes a Court from treating a counter-claim as a plaint in a cross suit. We are unable to see any. Not doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counter-claim which is to be treated as a cross suit might not conform to all these requirements but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. It, for instance, what is really a plaint in a cross suit is made part of the Written Statement either by being made an annexure to it or as part and parcel thereof, though described as a counter-claim, there could be no legal objection to the Court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. Mr. Desai had to concede that in such a case the Court was not prevented from separating the Written Statement proper from what was described as a counter-claim and treating the later as a cross suit. If so much is conceded it would then become merely a matter of degree as to whether the counter-claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought and if it did it would seem proper to hold that it would be open to a Court to convert or treat the counter-claim as a plaint in a cross suit. To hold otherwise would be to erect what in substance if is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. To hold otherwise would be to erect what in substance if is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in Order VIII, Rule 6 or in any other provision of the Code which laid an an embargo on a Court adopting such a course." The apex Court has laid down that even counter-claim is not maintainable if justice manifestly demands it can be treated as cross suit and it would be open to a Court to convert or treat the counter-claim as a plaint in a cross suit. There is no embargo in Order 8 Rule 6-A of CPC to adopt the aforesaid course. A Single Bench of this Court in Kartar Singh and others v. Kanhai Singh and others (supra), has also held that the provisions of sub-rules 6-A and 6-G inserted in Order 8, CPC in 1977 regarding 'counter-claim' were not available to defendant 15 but his claim had to be still tried otherwise in accordance with law. The written statement could have been treated as a plaint in cross suit but the Court should have permitted the plaintiff as also the contesting defendants an opportunity to present their written statements to that claim as envisaged under Rules 1 and 9 of Order. 8. In Bhamri Bai v. Ram Bai (supra), also similar view was taken by this Court relying upon the decision of Supreme Court in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others (supra), and also the decision of High Court of Jammu & Kashmir in Ghulam v. Ghulam Ahmad and others, AIR 195G J & K 38.8. In the facts and circumstances of the case, we deem it appropriate to direct trial Court to register the counter-claim as a cross suit and to try it along with instant suit. The plaintiffs and other defendants except defendants No.3 to 11 shall be permitted by the trial Court to file the written statement. The cross suit to be tried and decided along with the suit in question (C.S.No. 33-A/06). The impugned order permitting the defendants 3 to 11 to file counter-claim as against defendants No.1, 2 & 15 and 16 is set aside and instead it is ordered that it be treated as cross suit and decided along with C.S. No. 33-A/06. The cross suit to be tried and decided along with the suit in question (C.S.No. 33-A/06). The impugned order permitting the defendants 3 to 11 to file counter-claim as against defendants No.1, 2 & 15 and 16 is set aside and instead it is ordered that it be treated as cross suit and decided along with C.S. No. 33-A/06. Both the suits shall be consolidated and tried together. 9. Writ petition stands allowed in terms of the aforesaid order. No costs.