Adarsh Shikshan Sansthan Churu (Rajasthan) @APPELLANT@Hash Pyari Devi

This revision petition is directed against order dated 08.12.2017 passed by the trial court, whereby, the application filed by the respondent-Trust under

Order VIII, Rule 6A CPC has been accepted. The plaintiff filed a suit seeking permanent injunction from being dispossessed from the suit property

and restraint against interference in the academic activities being carried on by the plaintiff. A written statement was filed on 18.07.2013. Whereafter,

on 03.08.2015 the respondent-Trust filed its counter-claim seeking mandatory injunction for removal of interference of the plaintiff from the suit

property and prohibitory injunction so as not to interfere in the activities of the School.

Alongwith the counter-claim, an application under Order VIII, Rule 9 CPC for taking on record the counter-claim, was filed. The trial court dismissed

the application by its order dated 08.09.2017. Whereafter, the present application under Order VIII, Rule 6A CPC for taking on record the counter-

claim was filed by the respondent-Trust, to which, a response was filed by the petitioner questioning maintainability of the application and filing of the

counter-claim. The trial court came to the conclusion that as the cause of action in the counter-claim is claimed to have arisen in the month of May-

June, 2013, which was prior to filing of the written statement, the defendants were entitled to file the counter-claim.

Regarding the objection raised by the plaintiff that the counter-claim was beyond the pecuniary jurisdiction of the Court, it was observed that in the

counter-claim it has not been indicated by the defendants that the plaintiff is in possession and the defendants want possession of the suit property and

as the issue raised is a mixed question of law and fact, which can only be decided after the evidence is led by the parties, the said aspect cannot be

decided at this stage. Regarding the plea raised about dismissal of the application under Order VIII, Rule 9 CPC earlier, the Court came to the

conclusion that the said provision was different and looking to the  nature of issues raised, it was appropriate that the counter-claim was taken on

record.

It is submitted by learned counsel for the petitioner that the trial court committed error in accepting the application filed by the petitioner under Order

VIII, Rule 6A CPC. It was submitted that the counter-claim is required to be filed alongwith written statement and if the same is to be filed

subsequent thereto, the same can only be filed either under Order VIII, Rule 9 CPC or by way of amendment in the written statement. In the present

case, the application under Order VIII, Rule 9 CPC has been rejected by the trial court and no application under Order VI, Rule 17 CPC was filed

and, therefore, filing of application under Order VIII, Rule 6A CPC, which is only an enabling provision could not have been entertained by the trial

court. Â

Further submissions were made that proviso to Order VIII, Rule 6A(1) CPC specifically provides that the counter-claim shall not exceed pecuniary

limits of the jurisdiction of the Court. Referring to the relief claimed in the counter-claim, it was submitted that it is apparent that the defendants by

way of counter-claim have sought possession of the suit property and, therefore, the counter-claim was ex facie beyond the jurisdiction of the trial

court and, as such, the same could not have been entertained. The trial court by merely observing that the issue was mixed question of law and fact,

has skirted the said aspect, which is not permissible and, therefore, the order impugned deserves to be quashed and set aside. Â

Reliance was placed on Ramesh Chand Ardawatiya v. Anil Panjwani : AIR 2003 SC 2508. Â Learned counsel appearing for the respondents

supported the order impugned. It was submitted that the petitioner in fact had filed an application under Order VIII, Rule 9 CPC, which was rejected

as not maintainable and, thereafter the present application was filed, which has been accepted by the trial court, which cannot be objected by the

petitioner on this ground. Further submissions were made that the respondent was not claiming possession of the suit property by way of counter-

claim, it was merely seeking non-interference by the plaintiff and, therefore, the issue raised regarding pecuniary jurisdiction of the trial court does not

arise and, therefore, the order impugned passed by the trial court does not call for any interference. Â

I have considered the submissions made by learned counsel for the parties and have perused the material available on record. Hon’ble Supreme

Court in the case of Ramesh Chand Ardawatiya (supra) while dealing with the stage of filing the counter-claim, inter alia, laid down as under:-

“28. Looking to the scheme of O. 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 R. 1 read with R. 6-A would be a counter- claim against the claim of

the plaintiff preferred in exercise of legal right conferred by R. 6- Â 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 R.9. In the latter two cases the counter-claim though referable to R. 6-A cannot be brought on record as of right but shall be governed

by the discretion vesting in the Court, either under O. VI, R. 17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise

of discretion conferred on the Court under O. VIII, Rule 9 of the C.P.C. 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 proceedings.â€​ Â

From the above judgment, it is apparent that the counter-claim can be filed subsequent to filing of the written statement either by way of subsequent

pleadings under Order VIII, Rule 9 CPC or by way of amendment in the written statement. The defendants indeed filed an application under Order

VIII, Rule 9 CPC, which was apparently rejected as not maintainable, which determination by the trial court was ex facie contrary to the principles

laid down by Hon’ble Supreme Court. Once the application filed under correct provision has wrongly been rejected, the order impugned cannot be

interfered with on account of application having not been filed under an appropriate provision. The earlier application was filed by the petitioner under

an appropriate provision and as the same was wrongly rejected by the trial court, the applicant cannot be made to suffer on account of such order.

 In view thereof, in so far as the objection based on rejection of application filed by the respondent under Order VIII, Rule 9 CPC is concerned, the

same has no substance.

The provisions of Order VIII, Rule 6A(1) CPC provides as under:-

“6.A Counter-claim by defendant. â€" (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.â€​

A bare perusal of the above provision indicates that the defendants can file counter-claim subject to the restriction as contained in the proviso that

such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Â The defendants have claimed the following reliefs in the

counter-claim:-

^^10- ;g gS fd dkm.Vj DySe izLrqr dj izfroknh VªLV dh vksj ls izkFkZuk gS %& fd dkm.Vj Dyse izfroknh ds i{k esa oknh ds fo:) fMØh Qjek;k

tkos rFkk (Mandatory Form) esa LFkkbZ fu""ks/kkKk bl vk’k; dh tkjh dh tkos fd oknhi{k okn esa fufgr Hkou@ifjlj ls viuk n[ky@gLr{ksi gVk

ysosa rFkk (Prohibition Form) esa LFkk;h fu""ks/kkKk bl vk’k; dh tkjh dh tkos fd oknhi{k okn esa fufgr Hkou esa izfroknh VªLV }kjk lapkfyr dh

tkus okyh xfrfof/k;ksa o fo|ky; lapkyu esa dksbZ ck/kk@vojks/k dkfjr ugha djsa] mUgsa Hkou esa vius Lora= uke ls fo|ky; lapkyu djus nsosA** Â

A bare look at the above reliefs would indicate that an injunction in mandatory form has been sought, seeking direction to the plaintiffs to remove their

interference from the building/premises and a prohibitory injunction seeking a direction that no interference is caused in the activities being carried on

by the defendant-Trust. Though the relief claimed in the plaint has been couched in a language as if an injunction only is being sought, the fact that

already a temporary injunction has been issued in favour of the plaintiff against the respondents with regard to dispossession of the plaintiffs from the

suit property, relief claimed apparently is in the nature of seeking possession of the suit property. The trial court has clearly misconstrued the relief

claimed and has wrongly observed that only injunction has been sought.

However, the manner in which the plea has been raised in the counter-claim, the averments made therein are not sufficient for the Court to come to a

conclusion pertaining to the appropriate valuation of the counter-claim and if the same was beyond the pecuniary jurisdiction of the trial court and,

therefore, the said aspect could only be determined once a written statement to counter-claim is filed and a plea in this regard is raised and, therefore,

though the observations made by the trial court regarding the nature of relief claimed in the counter-claim cannot be sustained, however, the

subsequent observations regarding the determination of the said aspect after filing of the written statement etc. appears to be justified in the

circumstances of the case.

In view of the above discussion, though no interference is called for in the order impugned passed by the trial court, however, it is expected from the

trial court that in case an issue with regard to the pecuniary jurisdiction of the trial court, based on the reliefs claimed in the counter-claim, is raised by

the plaintiff in the written statement to the counter-claim, the said aspect be determined by the trial court by way of preliminary issue so that the trial

of rest of the suit does not get delayed on account of the issues, which are required to be framed based on the counter-claim, in case it is found that

the counter-claim as such is not triable by the said Court for lack of pecuniary jurisdiction. Consequently, with the above observations, the revision

petition filed by the petitioner stands disposed of.