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2009 DIGILAW 725 (CAL)

Sambhu Nath Dey v. Raghunath Dey

2009-09-09

TAPAN MUKHERJEE

body2009
Judgment :- (1.) Heard learned Counsel for the parties. (2.) Learned Lawyer for the petitioner has contended that by the impugned order, the petition under Order 8 Rule 6C of C.P.C. filed by the plaintiff for exclusion of counterclaim has been rejected by the learned Lower Court without considering whether such counter-claim can be made in a suit for declaration and injunction. (3.) Learned Lawyer for the petitioner further contended that by way of counter-claim, the plaintiff filed a suit for declaration and injunction in respect of the suit property against the defendants including the present opposite party No.4 and the opposite party No.4 as defendant No.4 filed counter-claim in his written statement praying for decree of eviction of the plaintiff in respect of "B" Schedule property which is part of the suit property and also for dismissal of the suit. The suit for ejectment of licensee and also for recovery of khas possession has no nexus with the present suit for declaration and permanent injunction and so the defendant No.4 could not have any relief by filing such counter-claim. He could have filed separate suit if so advised. (4.) Learned Counsel for the petitioner submits that the learned Court did not consider the said aspect and rejected the application of the plaintiff. The impugned order is not sustainable in law. There should be exclusion of the counter-claim filed by the defendant No.4 in view of the provision of Order 8 Rule 6C of the C.P.C, but that was rejected wrongly by the impugned order and the order should "be set aside and the learned Lower Court may be directed to dispose of the said application of the plaintiff under Ocder 8 Rule 6C C.P.C. afresh by passing reasoned order after hearing the parties afresh. (5.) Learned Counsel for the defendant No.4/opposite party No.4 contends that in order to avoid multiplicity of proceeding, the defendant may come up with the counter-claim praying for relief of recovery of Khas possession in respect of "B" Schedule property and he can get such relief and his counter-claim was filed within time, but the exclusion petition was filed by the plaintiff long after settlement of issues which is not permissible under Order 8 Rule 6C of C.P.C. (6.) Learned Counsel for the opposite party No.4 has further contended that there is no reason for exclusion of the counter-claim even if it is assumed that the learned Lower Court did not consider the submission of the learned Lawyer of the petitioner that no counter-claim for recovery of Khas possession on eviction of licensee cannot be entertained in his suit for declaration and injunction, still then it is open to this Court to decide the matter by exercising jurisdiction under Article 227 of the Constitution of India, (7.) Learned Counsel for the opposite party No.4 has placed reliance upon the decisions reported in AIR 1996 SC 1087 and AIR 1992 Madhya Pradesh 131. (8.) Considered the submissions made. (9.) In the decision reported in AIR 1996 SC 1087 , the Apex Court has observed that the Law Commission of India had recommended to avoid multiplicity of the proceedings, 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. 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. 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. The Apex Court held that in the suit for injunction, the counter-claim for possession could be entertained by operation of Order 8 Rule 6A(1) of C.P.C. (10.) The Madhya Pradesh High Court in the case reported in AIR 1992 M P 131 also held that counter-claim can be filed in a suit for specific performance of contract and filing of counter-claim is not restricted to money suits only. (11.) The petitioner/plaintiff filed the suit for declaration and permanent injunction in respect of the suit property including "B" Schedule property as mentioned in the counter-claim of the defendant No. 4. The defendant No. 4 filed a counter-claim within time and described the plaintiff as a licensee in respect of "B" Schedule room and prayed for his eviction on revocation of licence. (12.) The object of introduction of Rule 6A is to avoid multiplicity of suits and practically if different claims-the claim of the plaintiff and the claim of the defendant No. 4 in this case are decided in one suit, then surely the said multiplicity of the suits can be avoided. So, in view of the decision of the Apex Court and also in view of the provision of Rule 6A of Order 8 of C. P. C, the counter-claim of the defendant No.4 made in his written statement is entertainable. (13.) It is true that the learned Lower Court did not enter into the matter whether such counter-claim is entertainable in the suit for declaration and injunction, still such failure to decide the matter does not debar this Court to decide the same when the parties have been heard in the said matter and l think that it will not be expedient that the matter should be sent back to the learned Lower Court for fresh decision. (14.) The petition of the plaintiff for exclusion under Order 8 Rule 6C of C. P.C. was not filed within the time as mentioned in Rule 6C. Even on merit the petition for exclusion is not entertainable, as the. (14.) The petition of the plaintiff for exclusion under Order 8 Rule 6C of C. P.C. was not filed within the time as mentioned in Rule 6C. Even on merit the petition for exclusion is not entertainable, as the. claim of the defendant No.4 for eviction of the plaintiff as licensee from "B" Schedule property is entertainable in this suit for avoiding multiplicity of proceeding. (15.) The application for exclusion is not maintainable and the same is liable to be rejected. I have nothing to interfere with the order of rejection of the said petition by the learned Lower Court. (16.) The instant revisional application stands dismissed accordingly. (17.) The learned Lower Court is directed to dispose of the suit as well as counter-claim as expeditiously as possible. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Counsel for the parties as early as possible.