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2010 DIGILAW 203 (JK)

Noor Din Rather v. Sulla Rather

2010-04-19

MUZAFFAR HUSSAIN ATTAR

body2010
1. This revision is filed against the order dated March 10, 2010 passed by the learned Munsiff, Ganderbal in an injunction application filed by the petitioners. 2. Petitioners have instituted civil original suit seeking therein the following reliefs: "A) decree of mandatory injunction in favour of the plaintiff and against the defendants directing to dispose off the waste in their own land by digging underground trench and underground drainage in their own land. B) A decree of permanent and prohibitory injunction directing the defendants not to interfere in the peaceful ownership and possession of the plaintiff in the suit lands." 3. Defendants filed written statement in which they prayed that on the pleas taken therein the suit of the plaintiffs merits dismissal. 4. Alongwith the suit, an application seeking temporary injunction is also filed by the plaintiffs in which the learned trial Judge, while dismissing the injunction application of the plaintiffs, gave liberty to Revenue Agencies to open the `ven water channel from either side of the road as per the norms. The defendants were asked to undertake that they will not open any outlet of their latrine in the drain which will cause nuisance for the general public. 5. Heard learned counsel for the parties and considered the matter. Learned counsel for the petitioners submitted that the learned trial Judge, while dismissing the injunction application of the petitioners, could not pass directions which were beyond the pleadings and beyond the prayer sought for in the civil original suit. The learned counsel submitted that the order is without jurisdiction and, accordingly, merits to be set aside. 6. Mr. M.M. Iqbal, learned counsel for the respondents submitted that the order of the learned trial Judge is based on para 3 of his pleadings in written statement and the learned trial Judge was within jurisdiction to pass such an order. The learned counsel also referred to Rule 6-A of Order VIII of the Code of Civil Procedure and submitted that the respondents-defendants have set up a counter-claim and it is for this reason that the order has been passed by the learned trial Judge in favour of the respondents. Learned counsel, accordingly, submitted that the order impugned does not suffer from any error of jurisdiction and prayed for dismissal of the revision petition. 7. Learned counsel, accordingly, submitted that the order impugned does not suffer from any error of jurisdiction and prayed for dismissal of the revision petition. 7. The relief sought for in the plaint is confined to issuance of a decree for mandatory injunction to direct the defendants to dispose of the waste in their own land by digging underground trench and underground drainage in their own land. A further decree for permanent injunction has been prayed for to direct the respondents not to interfere in the peaceful possession of the plaintiff over the suit lands. Admittedly, no relief was sought for in respect of the channel `ven. In the written statement, at para 3, the respondents have pleaded that the plaintiffs have closed the `irrigation ven and `culverts. It is also pleaded that the petitioners-plaintiffs have made earth filling and created nuisance for themselves and the residents of the area by blocking `irrigation ven and `culverts and have made illegal encroachment. Defendants also pleaded that no nuisance is caused by bathrooms and latrine which is underground. 8. The order passed by the learned trial Judge, while dismissing the injunction application of the plaintiffs, is admittedly beyond the reliefs sought for in the plaint. Whether such a relief could be granted is to be considered in light of the submissions made by learned counsel for the respondents. Learned counsel for the respondents submitted that he has made a counter-claim and in this behalf placed whole hog reliance on Order VIII Rule 6-A. The same is reproduced as under: "Counter claim by defendant (1) A defendant in a suit may, in addition to his right of pleading as set off 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 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. " 9. A complete procedure is provided in Rule 6-A of Order VIII of the Code of Civil Procedure for filing of a counter-claim. Counter-claim is to be treated as a plaint and is to be governed by Rules applicable to the plaints. When counter-claim is made, it has the same effect as the cross suit so as to enable the court to pronounce a judgment. The counter-claim on the plain language of the Statute has to be in the same manner as that of the plaint. In the counter-claim the defendant has to plead his case as being pleaded in the plaint and has to seek relief as being sought in the plaint. When the counter-claim is filed, plaintiff gets right to file reply / written statement. The counter-claim has all the trappings of a plaint. A pleading in written statement put up as a defence to the case projected by the plaintiff in a plaint would not tantamount to counter-claim in law. In order to enable the court to pronounce judgment on the counter-claim, the counter-claim has to be in accordance with the provision of law like a plaint. Without pleading the facts and without seeking the relief, written statement cannot, in law, said to be a counter-claim. The very expression `counter-claim used in the Statute would mean that besides replying the grounds set up in the plaint, the defendant has to raise a claim which would require adjudication and grant of proper relief by the court at the conclusion of trial of the case. A pleading in a written statement put up as a defence would not thus, constitute counter-claim in law. Written statement is covered by Provision of Order VIII Rule 1 and counter-claim by Order VIII Rule 6-A. The argument of learned counsel for the respondent on this score fails. A pleading in a written statement put up as a defence would not thus, constitute counter-claim in law. Written statement is covered by Provision of Order VIII Rule 1 and counter-claim by Order VIII Rule 6-A. The argument of learned counsel for the respondent on this score fails. The impugned order, admittedly, is beyond the relief sought for in the plaint as also in the injunction application. The observations made in the impugned order are without jurisdiction as are beyond the relief sought for in the plaint. 10. For the aforesaid reasons, the revision petition is allowed and the impugned order is set aside. The learned trial Judge is requested to re-consider the matter on its merits after giving hearing to both the parties and pass appropriate orders in accordance with law. It is made clear that if any person has a grievance about the alleged closing of the `irrigation ven, he may file a motion before the competent authority and the competent authority may pass appropriate orders in accordance with law.