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2013 DIGILAW 984 (MP)

Shyam Sundar Gulati v. Ashok Jain

2013-08-20

Sheel Nagu

body2013
ORDER 1. This civil revision under section 115 of C.P.C. assails interlocutory order passed by the trial Court dismissing an application under Order VII Rule 11 of C.P.C. seeking rejection of the counter claim preferred by the defendants No. 1 to 6 against both the plaintiffs as well as 11 other persons, who were not party in the main suit. 2. Learned counsel for the rival parties are heard on the question of admission. 3. The primary ground raised in this application under Order VII Rule 11 of C.P.C. (Annexure A-5) is that the counter claim under Order VIII Rule 6A of C.P.C. cannot lie against persons other than the plaintiffs and since 11 persons have been impleaded as defendants in the counter claim, who are not party in the main suit, the counter claim is sought to be dismissed on that ground alone. 4. Learned trial Court placed reliance on the decision of the apex Court in the case of Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. reported in AIR 1996 SC 2222 . 5. Learned counsel for the rival parties have placed reliance on the cases of Mukund Lal and Anr. v. Ghanshyam and Ors. reported in 2009 (III) MPWN 50 = 2009 (3) MPHT 265 DB, Smt. Prabha Devi Sharma v. Somdatt and Ors. reported in 2005 ILR MP 399 and Hem Narain Thakur v. Deo Kant Mishra and Ors. reported in AIR 2000 NOC 23 (Patna) to emphasis the limitation of scope of order VIII Rule 6 (A) of C.P.C. The apex Court in the case of Jag Mohan (Supra) has dealt with the issue that property different than one involved in the main suit can be adjudicated in the counter claim. The Division Bench of this Court in the case of Mukund Lal (supra) has held that the counter claim between defendants inter-se is impermissible, whereas, Patna High Court in the case of Hem Narain Thakur (supra) has held that the cause of action in counter claim cases ought to arise before filing of written statement in the main suit and, therefore, none of these decisions throw light on the issue involved herein as to whether persons in addition to the plaintiffs in the main suit can be made respondents in the counter claim. 6. 6. The primary reason assigned by the trial Court is that the applicants have failed to prove that the counter claim is barred by any law. 7. True it is that the impugned order does not contain very many reasons, but the fact remains that Order VIII Rule 6A of CPC entitles the defendants to raise counter claim in regard to any right or claim in respect of cause of action accrued to the defendants against plaintiffs either before or after filing of the suit. The said provision permits filing of the counter claim against claim of the plaintiffs and therefore, impliedly the plaintiffs in the original suit would become defendants in the counter claim. This provision does not expressly provides that no counter claim can be filed by impleading persons in addition to the plaintiffs as defendants. Undisputedly, a counter claim cannot lie between the defendants inter-se as held in Mukund Lal and Anr. (supra). 8. The case at hand is not one where the defendants have filed counter claim inter-se against each other. The defendants while filing the counter claim have merely impleaded certain additional persons as defendants besides the plaintiffs in the original suit. This in the considered opinion of this Court cannot be a ground for rejection of the counter claim under Order VII Rule 11 of C.P.C. as impleadment of the additional persons in the counter claim as defendants apart from the plaintiffs cannot lead to violation of any law. 9. In view of above, the trial Court rightly declined rejection of counter claim on the grounds raised in the application under Order VII Rule 11 of CPC. 10. This Court thus, does not find any illegality, material irregularities or jurisdictional error in the order passed by the trial Court which is accordingly upheld. 11. Accordingly, this civil revision deserves to be and is hereby dismissed, sans cost.