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Himachal Pradesh High Court · body

2018 DIGILAW 2084 (HP)

Suresh Kumar v. Deepak Sood

2018-11-26

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The plaintiff is the petitioner, who aggrieved by the order dated 16.8.2018 passed by the learned Civil Judge, Court No.3, Shimla, H.P., whereby his application under Order 7 Rule 11 and Order 8 Rule 6(C) read with Section 151 of the Code of Civil Procedure, 1908 (n for short, the “Code”) for rejection of counter claim preferred by the respondents/defendants No. 2 and 3 was dismissed, has filed the instant petition. 2. The parties shall be referred to as the “plaintiff” and “defendants”. 3. The plaintiff has filed a suit for permanent perpetual prohibitory injunction against the defendants for restraining them from interfering in any manner in peaceful possession of the plaintiff, illegally dispossessing him or causing any hindrance in the business of the plaintiff being carried out by him as a proprietor of M/s Suresh Boot House in the suit property, which is pending adjudication before the learned trial court. During the pendency of the suit, defendants No. 2 and 3 on 10.5.2019 along with their written statement filed a counter claim seeking a relief of permanent perpetual prohibitory junction and mandatory injunction and for recovery of use and occupation charges from the plaintiff. It is then that the plaintiff filed an application under the aforesaid provisions for rejection of counter claim preferred by defendants No. 2 and 3 on the ground that the same was not legally maintainable in the eyes of law and, thus, was liable to be rejected. 4. It was submitted that as per mandate of Order 8 Rule 6 of the Code, the counter claim is to be treated as plaint and is governed by the Rules applicable to the plaints and since the counter claim has not been drawn up in accordance with law under Order 7 Rule 11 and Order 8 Rule 6(C) of the Code, therefore, it is liable to be rejected. 5. The defendants No. 2 and 3 filed reply to the application, wherein it was averred that the entire set of facts and detailed pleading of counter claim are already contained in para Nos. 2 and 3 of the written statement and since the same was in accordance with the Appendix A mentioned in Order 6 Rules 1 and 4 and order 8 Rules 6A and 6B of the Code, therefore, the application deserves to be rejected. 6. 2 and 3 of the written statement and since the same was in accordance with the Appendix A mentioned in Order 6 Rules 1 and 4 and order 8 Rules 6A and 6B of the Code, therefore, the application deserves to be rejected. 6. The learned trial court vide a detailed order rejected the application on 16.8.2018 constraining the plaintiff to file the instant petition. 7. I have the learned counsel for the parties and have also gone through the material placed on record. 8. The provisions dealing with counter claim have been spelt out in the Code and order 8 Rule 6(a) to (g) of the same read thus: [6A. 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 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. 6B.Counter-claim to be stated.— Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 6B.Counter-claim to be stated.— Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. 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. 6D.Effect of discontinuance of suit.— If in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. 6E.Default of plaintiff to reply to counter-claim.—If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit. 6F.Relief to defendant where counter-claim succeeds.—Wherein any suit a setoff or counter-claim is established as a defence against the plaintiff’s claim and any balance is found due to the plaintiff or the defendant, as the case may be the Court may give judgment to the party entitled to such balance. 6G. Rules relating to written statement to apply.—The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim. 9. In order to appreciate the controversy, one needs to understand the purpose for providing provisions enabling filing counter claim, that was for the first time introduced by Act 104 of 1976. The purpose obviously is to avoid multiplicity of judicial proceedings and save upon the court’s time as also to exclude the inconvenience to the parties by enabling claims and counter claims, that is, all disputes between the same parties being decided in the course of the same proceedings. The purpose obviously is to avoid multiplicity of judicial proceedings and save upon the court’s time as also to exclude the inconvenience to the parties by enabling claims and counter claims, that is, all disputes between the same parties being decided in the course of the same proceedings. This was so held by the Hon’ble Supreme Court in Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350 , wherein it was observed as under: 28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counterclaim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counterclaim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of 'subsequent pleading' as there is no 'previous pleading' on record. In the present case, the defendant having felled to file any written statement and also having forfeited his right to filing the same the Trial Court was fully justified in not entertaining the counter-claim filed by the defendant-appellant. A refusal on the part of the Court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim. 10. As would be noticed from the aforesaid observations, there are three modes of pleading for setting up a counter claim in a civil suit, which once filed is to be treated as a cross suit and not a separate suit. In fact, Order 8 Rule 6A(2) clearly provides that counter claim shall have the same effect as a cross suit (not a separate suit) so as to enable the court to pronounce final judgment in the same suit, both on the original claim and the counter claim. 11. A counter claim is a suit, though the same is taken in the written statement. Just as a suit is filed by the plaintiff, the defendant seeks a relief against the plaintiff on a cause of action, which he has against the plaintiff. It is an independent cause of action, which could also be agitated in separate suit. 11. A counter claim is a suit, though the same is taken in the written statement. Just as a suit is filed by the plaintiff, the defendant seeks a relief against the plaintiff on a cause of action, which he has against the plaintiff. It is an independent cause of action, which could also be agitated in separate suit. However, in order to avoid multiplicity of proceedings, the defendant is given liberty to file a counter claim and get adjudication. The counterclaim 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. Therefore, the counter claim has to be treated as cross suit only for the purpose of convenience and speedy disposal of rival claims and the counter claim in a suit is made permissible. 12. Once the Rules of the Code are applicable to the counter claim, then obviously the same would include the provisions of Order 7 Rule 11 of the Code. 13. However, does the applicability of Rules as envisaged under the Code include the entire provisions as contained in Orders 6 and 7. The answer to the same is in negative. 14. As observed earlier, the counter claim is not a separate suit, but is only a cross suit. Once that be so, then the defendant is only required to comply mainly with the provisions contained in Rule 1 (d) to 1 (i) of Order 7 as the other particulars are already available with the learned trial court in the suit filed by the plaintiff. 15. Order 7 Rule 1 of the Code reads as under: 1. Once that be so, then the defendant is only required to comply mainly with the provisions contained in Rule 1 (d) to 1 (i) of Order 7 as the other particulars are already available with the learned trial court in the suit filed by the plaintiff. 15. Order 7 Rule 1 of the Code reads as under: 1. Particulars to be contained in plaint.—The plaint shall contain the following particulars:— (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; (d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when it arose; (f) the facts showing that the Court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits. 16. As observed above, the purpose of permitting the defendant to file a counter claim, when he has an independent cause of action and even the limitation has not run out is that instead of filing of the separate suit, he can file a counter claim in order to avoid multiplicity of litigation. 17. 16. As observed above, the purpose of permitting the defendant to file a counter claim, when he has an independent cause of action and even the limitation has not run out is that instead of filing of the separate suit, he can file a counter claim in order to avoid multiplicity of litigation. 17. Now, in this background, in case heading of the written statement-cum-counter claim is seen, it will be noticed that defendants No. 2 and 3 have specifically raised the counter claim, as is evident from the heading, which reads thus:- Written statement on behalf of Defendants No. 2 & 3 under Order VIII Rules 1 & 2 read with section 27 of the Civil Procedure Code, 1908 along with the Counter claim under Order VIII Rule 6 read with Order VII Rule 1 & 2 and Section 26 of the Civil Procedure Code, 1908 with a prayer for restraining the plaintiff by way of permanent perpetual prohibitory injunction from using the licensed premises i.e. front portion of the shop measuring about 4 feet in depth and 11.5 feet in width in the basement floor of four storied building known as Amber Hotel Building also known as Diwana Mall Building in the records of Municipal Corporation, Shimla standing built upon land comprised in Khata/Khatauni No. 147 min/167 Mohal Bazar Ward Bara Tehsil and District Shimla for his business and for mandatory injunction directing the plaintiff to remove himself and his articles, stock, belongings etc. and etc. from the said premises and for recovery of use and occupation charges @ Rs. 5000/- per day till the date he illegally uses the front portion of the shop for his business activity. 18. In addition to the aforesaid, the defendants No. 2 and 3 have spelt out the reasons for filing of the counter claim, cause of action and the relief as would be evident from the perusal of later part of para 3 read with paras 4 and 5 of the written statement-cum- counter claim, which read thus: “3…………… Therefore, left with no other choice defendant No. 2 & 3 are constrained to file a counter claim for injunction restraining the plaintiff from using the front portion of the shop for business purposes. Since the plaintiff has failed remove his display counter, his articles and stock from licensed premises i.e. front portion of the shop measuring about 4 feet in depth and 11.5 feet in width as such he is required to be restrained by way of permanent perpetual prohibitory injunction from suing the said premises for his business and by way of mandatory injunction directing the plaintiff to remove his display counter, his articles, stock etc. and etc. from the said premises. As the plaintiff is illegally using the front portion of the shop without any right, title or interest in the same as such he has rendered the entire shop and property owned by the replying defendant useless therefore he is also liable to pay use and occupation charges @ Rs. 5000% per day till he illegally used the front portion of the shop for business activity or removes himself from the said premises for which present counter claim is preferred along with this written statement. 4. Contents of para No. 4 of the plaint as alleged are absolutely wrong, false and baseless therefore the same are denied. As a matter of fact no case is made out in favour of the plaintiff against the replying defendant. On the other hand it is the plaintiff who is required to be restrained by way of permanent perpetual prohibitory injunction from using the front portion of the shop in the basement floor of four storied building known as Amber Hotel Building also known as Diwana Mall Building in the records of Municipal Corporation, Shimla standing built upon land comprised in Khata/Khatauni No. 147 min/167 Mohal Bazar Ward Bara Tehsil and District Shimla for carrying out his business and by way of mandatory injunction directing the plaintiff to remove his articles, stock etc. and etc. from the said premises. 5. Contents of para 5 of the plaint as alleged are absolutely wrong, false and baseless as such same are denied. It is denied that any cause of action accrued in favour of plaintiff against the replying defendants. and etc. from the said premises. 5. Contents of para 5 of the plaint as alleged are absolutely wrong, false and baseless as such same are denied. It is denied that any cause of action accrued in favour of plaintiff against the replying defendants. On other hand cause of action arose in favour of defendants No. 2 & 3/counter claimants on 31st March, 2018 by which date the plaintiff was required to remove himself, his display, counter stock, belongings and articles from the licensed premises and subsequently on 18th April, 2018 when the plaintiff managed to obtain an ex part injunction and said cause of action is recurring on. 19. It would be noticed that defendants No.2 and 3 not only have with reasonable certainty but with fair purpose set out counter claim along with cause of action and the relief prayed for as well as valuation of the court fee affixed on the counter claim. The order passed by the learned trial court is a detailed and well reasoned order. Therefore, why then defendants No. 2 and 3 have still chosen to approach this Court by filing the instant petition. 20. The reason is not difficult to guess. The plaintiff is squatting over the commercial property and has sought relief of injunction. Now, defendants No. 2 and 3 themselves have filed a counter claim wherein they have claimed that the plaintiff is illegally using front portion of the shop without any right, title or interest and as such rendered entire shop and property owned by the defendants useless and therefore, he is also liable to pay use and occupation charges @ Rs.5000/- per day till he illegally uses the front portion of the shop for business activity or removes himself from the said premises. 21. Therefore, in the given facts and circumstances of the case, this Court has no hesitation to observe that the instant case is classical one being turned into a fruitful industry by unscrupulous plaintiff, who has been encouraged to persuade the court to pass interlocutory orders in his favour and may have earned huge profit during the course of this litigation. 22. Though, litigation is not gambling yet there is an element of chance in every litigation. 22. Though, litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle could be even lost at the end. This cannot be countenanced. 23. No doubt, a litigant has every right to approach the Court, but then he must do so where there is a justifiable cause. The plaintiff by getting these proceedings alive has gained and is trying to further gain undeserved and unfair advantage by dragging the proceedings for a long time on one count or the other and thereby delaying the disposal of the case by taking undue advantage of procedural complications. One has only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of litigation. 24. The Court has been used as a tool by the plaintiff to perpetuate illegalities to prolong the litigation knowing fully well that the petition filed by him was nothing short of being cantankerous and the same was eventually liable to be dismissed, particularly in light of the detailed order already passed by the learned trial court, which in fact has not been seriously challenged before this Court except elaborating what was otherwise averred in the application for rejection of the counter claim. No litigant can derive benefit from mere pendency of case in a court of law and under no circumstances can be allowed to take any benefit of his own wrong. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts. All these tendencies have to be curbed. 25. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts. All these tendencies have to be curbed. 25. In view of aforesaid discussions, I not only find this petition without any merit, but it am of the considered opinion that the plaintiff has grossly abused the process of this Court and, therefore, has made himself liable to pay costs. 26. Accordingly, the petition is dismissed with costs of Rs.25,000/-to be paid to the defendants before 31.12.2018. Pending application(s), if any, also stands disposed of.