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2014 DIGILAW 654 (MAD)

K. Rajasekaran v. M. Rajeswari

2014-03-14

N.KIRUBAKARAN

body2014
Judgment : 1. The plaintiff is before this Court challenging the order of dismissal of their application to reject the respondent counter claim in the suit filed by the petitioners. 2. The petitioners/ plaintiffs filed a suit for 8 reliefs, including permanent injunction restraining the respondent from putting up any kind of gate and compound wall across any portion of the suit item No.1 and for declaration of their easementary right of CART-TRACK over the suit item No.1 to reach the properties covered under the sale deed dated 1.10.1964, standing in the name of A.K. Kandasamy and which is registered as Document No. 1986/1964 on the file of Sub Registrar Office, Sankari and also to reach the suit item No.2 described in the schedule as item No.2. A written statement was filed by the respondent along with the counter claim. The said counter claim is sought to be deleted by filing an application by the petitioner, under Order 8 Rule 6-C of CPC. The said Application was dismissed, relying upon the judgement of the Hon'ble Supreme Court in Jag Mohan Chawla & anr. vs. Dera Radha Swami Satsang and Ors., reported in AIR 1996 SC 2222 , wherein it is declared that the counter claim in respect of the same or different property is maintainable. The said order is challenged before this Court. 3. Mr. V.S. Kesavan, learned counsel appearing for the petitioners would contend that, under Order 8 Rule 6-C, the petitioners are entitled to exclude the counter claim made by the respondent, provided, if a separate suit could be filed for the said relief. Order 8 Rule 6-C reads as follows :- "6C. The said order is challenged before this Court. 3. Mr. V.S. Kesavan, learned counsel appearing for the petitioners would contend that, under Order 8 Rule 6-C, the petitioners are entitled to exclude the counter claim made by the respondent, provided, if a separate suit could be filed for the said relief. Order 8 Rule 6-C reads as follows :- "6C. Exclusion of counter-claim : Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit." Though the petitioners contend that the counter claim can be raised by way of a separate suit, a perusal of the counter claim made by the respondent, especially, at paragraph 5 of the counter claim, the cause of action would reveal that, the respondent's property is situated adjacent to the petitioner's property and the compound wall, described in the prayer (g) of the plaint, seeking permanent injunction restraining the defendants and their men from in any manner putting up any kind of permanent structures and constructions in suit item No.2. Whereas, the counter claim made by the respondent is with regard to the adjoining property, which divides the petitioner's property and the defendant's property by virtue of a compound wall. Therefore, it cannot be said that it is a different property. 4. That apart, as rightly observed by the trial court, the Hon'ble Supreme Court in the case of Jag Mohan Chawla & anr. vs. Dera Radha Swami Satsang and Ors., reported in AIR 1996 SC 2222 , has held as follows :- " 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 6 A, 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 defendant can claim any property by way of counter claim in respect of any cause of action that has accrued to him eventhough it is independent of the cause of action averred by the plaintiff and the same cause of action can be adjudicated without relegating the defendant to file a separate suit. So, the view beyond is to avoid multiplicity of proceedings, especially when the dispute is between the same parties. 5. In view of that, the order passed by the trial court is valid and hence the revision fails. Therefore, the Civil Revision Petition is dismissed. Consequently, the connected M.P is closed. No order as to costs.