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2014 DIGILAW 818 (ALL)

Avishkar Krishna Dhaon v. Udai Krishna Dhaon

2014-03-07

ANIL KUMAR

body2014
JUDGMENT Anil Kumar,J.: - Heard Sri H.S. Jain, learned counsel for revisionists, Sri B.K. Saxena, learned counsel for O.P. No. 1 Sri Vinay Kant Shukla, learned counsel for O.P. Nos. 2 & 5 and perused the record. 2. Initially, Sri Kunwar Krishna Dhaon (now deceased) and Dr. (Mrs.) Rashmi Dhaon, filed a Suit for permanent and mandatory injunction, registered as Regular Suit No. 174 of 2006 (Kunwar Krishna Dhaon Vs. Udai Krishna Dhaon), pending in the court of Additional Civil Judge (Sr. Div.), Court Room No. 20, Lucknow on 17th May, 2006. 3. During the pendency of the suit, Sri Kunwar Krishna Dhaon, died, as such, substituted by his legal representatives, namely, Avishkar Krishna Dhaon, Km. Shirsti Dhaon and Indra Krishna Dhaon. 4. On 25.10.2006, defendant No. 1 field a written statement and filed counter claim, therein with the following relief: - "81. (sic) That the Defendant no. 1, by way of Counter Claim as provided Under Order VIII Rule 6(six) A CPC prays for the following reliefs. 1. Decree for possession in respect of one room and one Kothri situated on the second floor of house no. 33/A, Khun Khun Ji Road, Chowk, Lucknow as fallen in the share of the Defendant no. ! As per the Will dated 08.11.2012 (Eight November, Two Thousand Two) as stated in paras 69 above may kindly be passed in favour of the Defendant No. 1 against the Plaintiffs and their agents. 2. Costs of the Counter Claim may kingly be awarded to the Defendant No. 1 against the Plaintiffs. 3. Such other relief(s) as this Hon'ble Court may kindly deem just and proper in the circumstances of the case, may kindly be passed in favour of the Defendant of No. 1 against the Plaintiffs.." 5. On 15.02.2012, the revisionist-plaintiff filed their objection to the counterclaim, after hearing the parties concerned in Regular Suit No. 174 of 2006, the court below by order dated 07.01.2013 has rejected the objection filed on behalf of the revisionist/plaintiff and directed the plaintiff to file their written statement to the counterclaim filed by the defendant No. 1. Aggrieved by the said facts, present revision has been filed. 6. Sri H.S. Jain, learned counsel for revisionist while challenging the impugned order submits that the impugned order dated 07.01.2013 is contrary to the provisions as provided under Order 8 Rule 6 read with order 8 Rule 7 CPC. 7. Aggrieved by the said facts, present revision has been filed. 6. Sri H.S. Jain, learned counsel for revisionist while challenging the impugned order submits that the impugned order dated 07.01.2013 is contrary to the provisions as provided under Order 8 Rule 6 read with order 8 Rule 7 CPC. 7. In order to elaborate the said submission, Sri H.S. Jain, learned counsel for revisionist submits that from the perusal of the written statement and the counterclaim raised therein the position which emerged out that the same is not in accordance with the provisions as provided under Order 8 Rule 6A(4), 6B and 7 CPC, so the court below has erred in entertaining the counterclaim which is not in conformity with the mandatory provisions provided in this regard under Code of Civil Procedure. 8. It is further submitted that the defendant No. 1 has filed a written statement and straightway stated in paragraph No. 79 regarding the accrual, the cause of action for filing counterclaim but no facts and grounds in support of the counterclaim have been stated in the written statement. In support of the said argument, Sri H.S. Jain, learned counsel for revisionist has placed reliance on paragraph No. 79 of the written statement, quoted hereibelow: - "79. (sic) That the cause of action for the Counter Claim in the Shape of the Decree for possession in respect of the said room and kothri arose to the Defendant no. 1 when the Plaintiffs with the help of his agents took its forcible and illegal possession on 12.09.2005 as stated above after dispossessing the Defendant no. 1 therefrom and refused to vacate despite demands and the said cause of action for the Counter Claim continues to subsist against the Plaintiffs, in view of the facts stated hereinabove to the defendant no. 1 within the territorial jurisdiction of this Hon'ble Court as the said property lies within the territorial limits of jurisdiction of this Court." 9. 1 therefrom and refused to vacate despite demands and the said cause of action for the Counter Claim continues to subsist against the Plaintiffs, in view of the facts stated hereinabove to the defendant no. 1 within the territorial jurisdiction of this Hon'ble Court as the said property lies within the territorial limits of jurisdiction of this Court." 9. Accordingly, it is submitted that on the basis of arguments made in paragraph No. 79 of the written statement, the counterclaim filed on behalf of the defendant No. 1 is not in conformity with the provisions as provided under Order 8 Rule 6A (4), 6B Rule 7 CPC because where defendants relies upon several grounds of defence on which counterclaim is founded, the same shall be separate and distinct facts and they may be stated so far as may be separately and distinctly. The said exercise has not been done by the defendant No. 1 in the present case, in this regard the objection has been taken by the plaintiff but the same has not been considered by the court below and rejected in a summarily manner without giving any cogent reason by the impugned order, so the same is contrary to law. 10. Sri H.S. Jain, learned counsel for revisionist further submits that once the counterclaim is admitted, the plaintiffs to a suit became a defendants to the said counterclaim and they have to file their written statement and in the present case as neither the facts nor the grounds have been separately and distinctly stated in the written statement on the basis of which the counterclaim has been raised, so the plaintiffs are not in a position to set of their defence while filing written statement, so the impugned order dated 07.01.2013 passed by Additional Civil Judge (Sr. Div.) Room No. 20, Lucknow being contrary to the provisions as provided under Order 8 Rules 6A, 6B and 7 CPC, liable to be set aside. 11. Sri B.K. Saxena, learned counsel for opposite party No. 1 while supporting the impugned order dated 07.01.2013 submits that in a suit for injunction the defendant is entitled to file a counterclaim as per the provisions as provided under Order 8 Rule 6A CPC, in this regard he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Gurbachan Singh Vs. Bhag Singh and others, 1996 (1) SCC 7701, relevant paragraph quoted as under: - "The contention raised in the courts below was that in a suit for perpetual injunction, the respondents could not lay any counter claim for possession. Order 8 Rule 6(A)(1) of the C.P.C., 1908 as amended in 1976 reads thus: "A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiffs, 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." It is true that Rule 6A(a) was introduced by Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter claim or set off cannot be set up in other suits. 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.. Thus considered, we hold that in a suit for injunction, the counter-claim for possession also could be entertained, by operation of Order 8 Rule 6 (A)(1) of CPC. 12. And in the case of Kavindra Jain Vs. Amritlal, AIR 1992 Madhya Pradesh 131, Jagmihan Chawla and another Vs. Dera Radha Swami Satsang and others, 1996 (4) SCC 699 also. 13. Sri B.K. Saxena, learned counsel for opposite party No. 1 further submits that the pleadings under order 6 Rule 1 CPC as defines as follows: - "Pleadings shall mean and plaint or written statement." 14. Keeping in view the said definition and as per the provisions as provided under Order 6 Rules 2 and 3 CPC, the every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be in the form as given in Appendix-A, so the only mandatory requirement on the part of defendant No. 1 to raise the counterclaim in a written statement is to state the fundamental facts on the basis of which he has set up his counterclaim and in the present case from the perusal of the written statement, specifically paragraph Nos. 67, 69, 78 and 79 of the written statement, the defendant No. 1 has stated the fundamental facts separately and distinctly, in this regard he has placed reliance on the judgment given by Hon'ble Apex Court in the case of Devasahayam, (Dead) by LRS Vs. P. Savithramma and others, 2005 (7) SCC 653 , relevant paragraph quoted as under: - Para No. 22 - A suit for eviction under the said Act would lie before a Rent Controller and not before a Civil Court. In terms of proviso appended to Section 10(1) of the said Act before the parties to pursue their remedies in a civil court a Rent Controller is required to arrive at a finding as regard the bona fide or otherwise the claim of the tenant. " 15. In terms of proviso appended to Section 10(1) of the said Act before the parties to pursue their remedies in a civil court a Rent Controller is required to arrive at a finding as regard the bona fide or otherwise the claim of the tenant. " 15. Accordingly, Sri B.K. Saxena, learned counsel for opposite party No. 1submits that defendant No. 1 in order to raise his counterclaim in the written statement has pleaded the facts, grounds and cause of action, the said exercise on his part is in accordance with the provisions as provided under Order 8 Rule 6A read with Order 8 Rule 7 CPC, so the argument advanced by learned counsel for the revisionist that the facts and grounds have not been stated separately and distinctly in order to take counterclaim by defendant No. 1 is incorrect, contrary to the pleading/material on record, in this regard he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Swamy Atmananda and others Vs. Sri Ramakrishna Tapovanam and others, AIR 2005 SC 2392 . 16. Lastly, it is submitted by Sri B.K. Saxena, learned counsel appearing on behalf of defendant No. 1 while raising his counterclaim he has specifically mentioned in paragraph No. 79 the cause of action which as occurred to the defendant No. 1 for raising of counterclaim paid the requisite court fee as sought in paragraph No. 80 and accordingly he has prayed the relief by way of counterclaim taken in paragraph No. 81 of the written statement, thus, there is no illegality or infirmity in the impugned order under challenge in the present case, so the revision is liable to be dismissed. 17. I have heard learned counsel for the parties and gone through the record. 18. 17. I have heard learned counsel for the parties and gone through the record. 18. In order to decide the controversy involved in present case, I feel appropriate to consider the provisions as contained in Order VIII Rule 6-A & Rule 7 CPC which is quoted hereinbelow: "6-A. Counter-claim by defendant (1) A defendant in a suit may, in addition to his right of 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 that 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." 7. Defence or set-off founder upon separate grounds-- Where the defendant relies upon several distinct grounds of defence or set-off [or counter-claim] founded separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. 19. Rule 6-A of Order VIII was introduced by amendment of 1976 and the very purpose of introducing this new rule on the recommendation of the Law Commission of India was to avoid multiplicity of the proceedings inasmuch as ignoring the frame of suit and giving right to the defendant to raise not only the plea of set off but also counter claim by setting up rights to himself irrespective of the fact whether the cause of action for counter-claim had accrued afterwards of the filing of the suit. 20. From the wordings and plain reading of R.6 of O.8, it is clear that it contemplates counter-claim with respect to any suit without having any restriction. 20. From the wordings and plain reading of R.6 of O.8, it is clear that it contemplates counter-claim with respect to any suit without having any restriction. Because from the bare reading of the said provision, the position emerges to the effect that the object of enacting Rule 6-A is to reduce multiplicity of proceedings and to decide the cause of action in a suit and cross-claims together by a common judgment (See- Nabakishore Vs. State of Orissa AIR 1992 Ori, 303). 21. Under O.8, R.6-A, once a suit has been filed the defendant can set up by way of counter-claim any right or claim against the plaintiff which arises before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter claim may be a claim in the nature of damages also. The only restriction as set out in the provision is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the Court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a united proceeding: (See: Barthels and Luders GmbH Vs. M.V. Dominique AIR 1988 Bom. 380). So, it is not right to say that once written statement is filed, an application for counter-claim under Order VIII Rule 6-A is ex facie barred: (See: -Datta Bandu Sadale Vs. Sridhar Payagonda Patil AIR 1987, Supreme Court 1395) 22. Moreover, the counter-claim can be filed even subsequent to the filing of the written statement provided it relates to the cause of action which had accrued prior to the filing of the suit or prior to the filing of the written statement or prior to the last date fixed for filing the written statement (See: - Mahendra Kumar Vs. State of Madhya Pradesh AIR 1987 Supreme Court 1395). 23. Further, from the reading of the provisions of Order VIII Rule 6-A and 6-G of the Civil Procedure Code, it is clear that the counterclaim has to be treated as a cross-suit and it has to be tried along with the original claim and all the rules of pleading apply to a counter claim. It becomes a plaint in cross suit and the plaintiff is entitled to file a written statement in answer to the counterclaim of the defendant. 24. It becomes a plaint in cross suit and the plaintiff is entitled to file a written statement in answer to the counterclaim of the defendant. 24. Thus, A defendant, who wants to avail of the benefit of the provision of Order 8 Rule 6-A CPC, has to lay such counter-claim at the time or after filing of the written statement, provided, of course, that the cause of action has accrued before the delivery of defence has expired. Further, it will not be justified in keeping out of consideration the counterclaim, merely because it came after the filing of the written statement, i.e., after delivering the defence, if the cause of action has accrued before filing of the written statement or before the time limited for delivering the defence has expired but it has to be set up before the issues are framed, at any rate, before recording of evidence commences. 25. If a counterclaim is permitted to be set up after the evidence is adduced, it would cause great prejudice to the plaintiff in the suit because at the time of adducing evidence, he will not be aware of the counterclaim, as it will not be on record. Therefore, plaintiff cannot be expected to, and he is not required to, adduce evidence having a hearing on the counterclaim. Further allowing the counter claim to be set up after the evidence is recorded, would mean but ignoring the provisions of 6A to 6G of the Code of Civil Procedure. 26. Hon'ble the Apex Court in Mahendra Kumar v. State of MP, AIR 1987 Supreme Court 1395 , while considering the provisions of Order VIII, Rule 6-A(1) of the Code held that counter-claim filed by the defendant after he had filed the written statement is not barred and held what is laid down under Rule 6-A (1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired. If the counter-claim which is treated as a suit under Section 3 (2) (b) of the Limitation Act had been filed within three years from the date of accrual to them of the right to sue, it cannot be said that it is not maintainable. 27. If the counter-claim which is treated as a suit under Section 3 (2) (b) of the Limitation Act had been filed within three years from the date of accrual to them of the right to sue, it cannot be said that it is not maintainable. 27. Following the above decision, the Bombay High Court in Daita Bandwadale v. Sridhar Payagonda Patil, AIR 1992 Bom 422 , rejected the contention that the lower Court rightly excluded the counterclaim in exercise of power under Order VIII, Rule 6-C of the Code and allowed the revision holding after extracting the relevant provision as follows: "A perusal of the above provision makes it clear that there is no requirement that the counter-claim must be of the same nature as the claim of the plaintiff or that it must be arising out of the same transaction. In fact the words " any right or claim in respect of the cause of action accruing to the defendant against the plaintiff make it very clear that the counter-claim is not subjected to the same restriction as a set off is under Order VIII, Rule 6 of the Code of Civil Procedure. Shri Bagwe, the learned Counsel did contend that even a counterclaim falling under Rule 6-A must be of the same nature as a set off falling under Rule 6. On a plain reading of the provisions of Rule 6-A, it is not possible to accept this contention of Shri Bagwe. Further the concluding words of sub-rule (1) of Rule 6-A reading "whether such counter-claim is in the nature pf a claim for damages or not" make it abundantly clear that the counter-claim may be a claim in the nature of damages or may not be so ....." (para 8) 28. After considering the provisions of Order VIII, Rule 6-A(1), the Apex Court in Gurbachan Singh (Supra) held that in a suit for injunction, counter-claim for possession could also be entertained by operation of Order VIII, Rule 6-A(1) of the Code of Civil Procedure. 29. In Jagmohan Chawla (Supra), the Apex Court while deciding the question "Whether in a suit for injunction, counterclaim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action ? 29. In Jagmohan Chawla (Supra), the Apex Court while deciding the question "Whether in a suit for injunction, counterclaim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action ? "held as follows: ".....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 that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the writing statement expires. The defendant may set-up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite Court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, the Legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, 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..... (para5)" 30. In other words, 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..... (para5)" 30. Accordingly, it can be said that Rule 6A was introduced by amendment of 1976 and the very purpose of introducing this new rule on the recommendation of the Law Commission of India was to avoid multiplicity of the proceedings and in nut shell the scope of the said provision is to the effect that the defence claim has to be broadened irrespective of category of suit and cause of action arising after the filing of the suit with only restriction of pecuniary jurisdiction of the Court where the suit has been filed so that counter-claim cannot take away the jurisdiction of that Court. In a suit for injunction, counter-claim of possession by the defendant can be entertained under Order VIII, Rule 6A of the Code of Civil Procedure. From the wordings and plain reading, the said rule is that the same permit the defendant to set up counter-claim which arises between the parties and which are not non-cognizable to the Court where the suit is pending, the object is to reduce the pendency of the cases so that claims and cross-claims similar in nature can be disposed of by the common judgment and if the same is not permitted the whole purpose of introduction of new Rules 6A to 6G of Order 8 CPC would be frustrated. 31. So, in brief, it can be held that a pleading by way of counterclaim runs with the right of filing a written statement and such right to set up a counterclaim is in addition to the right of pleading a set-off conferred by Rule 6. A set-off has to be pleaded in the written statement. The counterclaim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counterclaim can be allowed to be raised. 32. The counterclaim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither the written statement can be filed as of right nor a counterclaim can be allowed to be raised. 32. Further, Order 8 Rule 7 CPC provides that if a defendant raise a counterclaim, same should be founded on separate and distinct facts which are to be stated so far as may be separately and distinctly, thus, the only legislative intend while incorporating the said provisions in the Code of Civil Procedure is to the effect that the fundamental facts on which the defendant raise his counterclaim in the written statement must be separately, distinctly and clearly stated, the object and purpose behind the same is once the counterclaim is accepted the plaintiff to a suit has to file his written statement, should to know that on what pleas, facts and grounds he had to contest the counterclaim. 33. In the instant matter, from the material on record, the position which emerged out that while filing the written statement, the defendant No. 1 raised his counterclaim for the purpose of which he has stated the cause of action in paragraph No. 79. In paragraph No. 80 he has mentioned in respect to the valuation in respect to the counterclaim and the court fee to be paid and in paragraph No. 81 the relief which have been claimed by the defendant by way of counterclaim. And while setting up the counterclaim the cause of actions as well as the fundamental facts on which the counterclaim has been based by the defendant has been separately and distinctly pleaded in the written statement in preceding paragraphs to the paragraph No. 81 by which he has raised his counterclaim/relief, namely, paragraph Nos. 67, 69 and 70 etc. and the same is in accordance with the law as laid down by Hon'ble the Supreme Court in the case of Devasahayam, (Dead) by LRS Vs. 67, 69 and 70 etc. and the same is in accordance with the law as laid down by Hon'ble the Supreme Court in the case of Devasahayam, (Dead) by LRS Vs. P. Savithramma and others, 2005 (7) SCC 653 , so it is incorrect on the part of the plaintiffs/revisionists to submit that the defendant No. 1 has not separately and distinctly stated the facts in its written statement in order to raise his counterclaim as per the provision of Order 8 Rules 6A (4) 6B and 7 CPC. 34. Thus, from the above analogy, I find and hold that there is no illegality or infirmity has been committed by court below in passing the order dated 07.01.2013 rejecting the objections filed by the plaintiffs against the counterclaim raised by defendant no. 1 in Regular Suit No. 174 of 2006. 35. In the result, the revision lacks merit and is dismissed.