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2015 DIGILAW 791 (MP)

Shambhu Dayal v. Rameshwar Dayal

2015-08-03

ROHIT ARYA

body2015
ORDER 1. By this petition, preferred at the instance of the petitioners-defendants under Article 227 of the Constitution of India, challenge is made to the order dated 3.7.2009 passed by the trial Court, where by application under Order 8 rule 6A of the CPC; counterclaim of the defendants, has been rejected inter alia on the ground that subject matter of the suit and that of the counter-claim are in relation to different properties and the reliefs sought for, are also independent of each other, therefore, under such circumstances the provisions, as contained in Order 8 rule 6A are not attracted. 2. Questioning the sustainability of the aforesaid order, learned senior counsel appearing for petitioners-defendants has submitted that the trial Court has not at all appreciated the nature of claim made in the plaint and the reliefs sought, in juxtaposition with the claim made in the counter-claim and the reliefs sought thereunder. As a result, the trial Court failed to take into consideration the actual facts on record and consequently misapplied the provisions as contained in Order 8 rule 6A, CPC, while rejecting the counter-claim. It is submitted that the suit is filed for declaration and injunction inter alia contending that the suit property was originally a Joint Hindu Family property belonging to parties to the suit, but by way of oral partition, the properties described in the suit had fallen into the share of the plaintiffs and, therefore, the aforesaid land be declared to be in the ownership and possession of the plaintiffs and consequently, the sale deed dated 14.2.2007 registered on 11.2.2008 executed by defendant No.1 in favour of defendants No.2 and 3 in respect of the said property, be declared as null and void. In the alternative, it was prayed that if the aforesaid oral partition is not found to have been proved, relief be granted that defendant No.1 had no right to execute the aforesaid sale deed in respect of the suit property which was of Joint Hindu Family, unless the same was partitioned by metes and bounds. Thirdly, relief of permanent injunction was sought against the defendants for not interfering with the peaceful possession of the plaintiffs in the suit property. 3. Learned senior counsel has thereafter referred to the written statement and the counter-claim made thereunder and submitted that the agricultural land falling in Survey No.1497 and 1488 are Joint Hindu Family property. Thirdly, relief of permanent injunction was sought against the defendants for not interfering with the peaceful possession of the plaintiffs in the suit property. 3. Learned senior counsel has thereafter referred to the written statement and the counter-claim made thereunder and submitted that the agricultural land falling in Survey No.1497 and 1488 are Joint Hindu Family property. However, the plaintiffs have deliberately excluded the land falling in Survey No.1488. Besides by the oral partition, suit land falling in Survey No.1497, as well as, 1 Bigha and 1/2 Biswa land out of Survey No.1488, had fallen into the share of defendant No.1. It was submitted that the map annexed with the plaint was not correct and the plaintiffs have no right to claim any interest over the suit land falling in Survey No.1497 and, accordingly, denied the averments made in the plaint. 4. In the counter-claim it is prayed that the land falling in Survey No.1488 is also Joint Hindu Family Writ Petition No.3609/2009 (Shambhu Dayal and others v. Rameshwar Dayal through LRs and others) property and the same is to be partitioned by metes and bounds between the parties to the suit. Relief was also sought by the defendants for recovery of possession of 1 Bigha and 1/2 Biswa of land out of Survey No.1488, from the illegal possession of plaintiffs and further relief of injunction was sought against the plaintiffs from creating any third party rights over the said land. 5. Learned counsel in the context of the aforesaid pleadings on record, has submitted that there is apparent gross illegality in the order impugned and the conclusion of the trial Court that the subject matter of the suit and the relief claimed thereunder are independent to that of counter-claim. It is submitted that the order, in fact, suffers from patent perversity and, therefore, this is a case of jurisdictional error on the part of the trial Court while rejecting the counterclaim under Order 8 rule 6A, CPC. 6. Learned senior counsel, in support of his submission, has referred to the judgment of Hon’ble the Supreme Court in the case of Jag Mohan Chawla and another v. Dera Radha Swami Satsang ( AIR 1996 SC 2222 ), wherein, object, ambit and scope of Order 8 rule 6A, CPC have been elucidated by way of authoritative pronouncement of law. 6. Learned senior counsel, in support of his submission, has referred to the judgment of Hon’ble the Supreme Court in the case of Jag Mohan Chawla and another v. Dera Radha Swami Satsang ( AIR 1996 SC 2222 ), wherein, object, ambit and scope of Order 8 rule 6A, CPC have been elucidated by way of authoritative pronouncement of law. It has been laid down that in sub-rule (1) of Rule 6A, the language is so couched with the 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. Further, 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” have wide connotation and include 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. 7. In view of the aforesaid law laid down by Hon’ble the apex Court and the fact situation in hand, in the opinion of this Court, the counter-claim filed by the petitioners-defendants cannot be said to be independent of the subject matter of suit. On the contrary, there is a clear nexus between the subject matter of the suit and that of the counter-claim, necessitating simultaneous determination of the rights of the parties. The aforesaid view is well in conformity with the legislative intent as contained in Order 8 rule 6A which aims to avoid series of litigations between the same parties, which could otherwise be dealt with in the same suit. 8. Accordingly, the writ petition is allowed and the impugned order is set aside.