Bhagirath Singh and others vs Ramnath and others

U.N. Bhachawat, J.—This is defendant''s revision against the order of the Civil Judge Class II, Lahar in Civil Suit No. 370 of 1970, dated 21-9 1972.

The short facts giving rise to the present revision are these :

The plaintiff-non-applicants have filed a suit for the declaration of their title over the suit land for a declaration that the defendants have no right to construct a latrine or a door over it or to put a door of their latrine or have opening on it and for a mandatory injunction for closing the door of defendants'' latrine which opens on the suit land.

The defendants while controverting plaint allegations, inter alia, claimed that the suit land belongs to them; they have their passage and opening over it for the last 20 years and that the plaintiffs are their tenants of it at the rate of Rs. 10/- per month. The defendants in their written statement also claimed for decree for arrears of rent and possession of the suit land against the plaintiffs on the basis of the alleged tenancy.

The trial Court framed a preliminary issue "whether the defendants can pray for arrears of rent and possession against the plaintiffs in this suit."

The trial Court vide the impugned order, decided this issue against the dependents and ordered the defendants to strike out from their pleadings the averments relating to this issue. The operative part of the impugned order is let out below

In the result, I hold that the defendants'' cross suit which is in the written statement is not tenable in this case as a cross-suit, as framed. The defendants should delete the pleadings to that effect and should amend the written statement within seven days.

Relying on the decision of Hon''ble the Supreme Court in Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others, . learned counsel for the appellants contended that it was imperative for the trial Court to entertain the claim of the suit land and dispose of according to law, as his claim was a counter-claim which squarely fell within Order 8, rule 5 C. P. C.

The points that arise for consideration in this revision are (i) whether the trial Court has committed an error in rejecting defendants'' claim fox arrears of rent and possession of suit land put forth in the written statement as not maintainable in the present suit, (ii) whether the trial Court was right in ordering the defendants to strike out from their written statement the averment that the plaintiffs are their tenants of the suit land and (iii) Whether the aforesaid errors or either of them Is one calling for interference by this Court u/s 115 C. P. C.

Though I have, for an intelligent understanding put the aforesaid points distinctly. I do not propose to deal with each of them separately to avoid iteration.

Before I start dilating on the question involved, for a better grip of the problem, the relevant paragraphs of the written statement are usefully extracted here in below.

The trial Court in the decision of the fore-quoted preliminary issue, reached the conclusion quoted in paragraph 5 of this order on the ground that the claim of the defendants is a cross suit included in the written statement which is not admissible being out of the scope of Order 8, rule 6 C. P. C.

To gat a proper hand of the matter, it would be useful to set out this relevant holding of the trial Court;-

Under Order 8 rule 6 of CPC the said cross-suit or cross claim is not tenable, because it is not only in respect of money transaction. AIR 1964 SC 15 hat been cited by the learned counsel for the defendant in his support but the facts of that case are almost different and do not coincide with the facts of this case.

The learned counsel for the applicants was stubborn in his argument that defendants'' claim was a counter claim and being within the scope of Order 8, rule 6 C. P. C, he had a statutory right to advance it in his written statement and it was admissible. Order 8 rule 6 C. P. C. reads thus:

R. 6 Particulars of the set off to be given in written statements-(1) where in a suit for the recovery of money the defendant claims to set-off against the plaintiff''s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff''s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set off.

(2) Effect of set-off-The written statement shall have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in respect of both of the original claim and of the setoff; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement in answer to claim of set-off.

On a plain reading of the Order 8, rule 6, it is apparent that following conditions must exist for attracting its applicability:

(i) Suit must be for recovery of money,

(ii) Defendant''s claim must be for an ascertained sum of money,

(iii) It must be legally recoverable,

(iv) Both parties must fill same character as they fill in plaintiff''s suit,

(v) The sum claimed by way of set-off should not exceed the pecuniary limits of the jurisdiction of the Court.

It cannot be gainsaid that the present suit is not for the recovery of money. On a mere look at this provision, the learned counsel for the applicants should have realized the futility of his argument. Further on a correct reading of the Supreme Court decision in Laxmidas v. Nanabhai AIR 1964 SC ll. he should have noted that that case also proceed d on the premises that the case was not covered under Order 8 rule 6, as would be evident from the observations in para 6 thereof which reads as under:

The first submission made by Mr. Desai, learned counsel for the appellant was that no counter-claim was maintainable in the Muffassil-There is not much controversy before us about the point and in view of the course of the proceedings it really does not arise for consideration, though we must add that we are not to be under ood as doubting the two propositions that a right to make a counter-claim is statutory and that the present case is admittedly not within O. 8 R 6 Civil Procedure Code. We say it does not arise because a finding adverse to its maintainability was recorded by the trial Judge and by the District Judge on appeal on a consideration of the decisions of the Privy Council and the various High Courts and when the matter was in the High Court the learned Judge also proceeded on the basis that a counterclaim was not admissible and the respondents have not preferred any appeal there form and that has become final. We might therefore proceed with the points arising in the case on the basis that a counter, claim is not admissible in the Muffassil, and the only question is whether the Court could treat a counter-claim as the plaint in a cross-suit.

In the light of the aforesaid discussion the argument of the learned counsel for the applicants that the defendants is a counter claim covered under Order 8 rule 6 CPC. hat to be repelled. Thus, of course, the argument of the applicants having been repelled, the revision should be dismissed. But in view of the circumstances of the case and the decision of the Supreme Court in Laxmidas v. Ninabhai (supra), the revision deserves to be allowed for the reasons to follow.

It would be pertinent at this stage to refer to the relevant observations of the above referred Supreme Court decision:

**** If so much is conceded, it would then become merely a matter of degree as to whether the counter-claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought and If it did, it would seem proper to hold that it would be open to a Court to convert or treat the counterclaim as a plaint in a cross-suit To hold otherwise would be to erect what in substance is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in O. 8 R. 6, or in any other provision of the Code which laid an embargo on a Court adopting such a course.

From the aforesaid observations, it is evident that it is open to Court to convert or treat the counter-claim as a plaint in a cross-suit. In the instant case, as observed by the trial Court and as also borne out from the fore quoted paragraphs of the written statement, it is evident that in substance, the defendants have set up a cross-suit in the written statement. They have also paid the Court fees on the relief sought by them. The plaintiffs have set up a claim on the basis of their title over the suit land, the defendants deny the title and contend that they are the owners and plaintiffs are their tenants. So In any case, a question of title shall have to be gone into and the defendants would also be entitled to lead evidence in rebuttal that the plaintiffs are not the owners, they are the owners and the plaintiffs are their tenants. This apart if the defendants were to file a separate salt for possession for the recovery of the arrears of rent again it the plaintiff on the basis of their alleged title and tenancy against the plaintiffs, it cannot be gainsaid that such a suit could be maintained. Thus, in this setting of the circumstances, to avoid the multiplicity of suit, it would he in the interest of justice to treat the counter-claim of the defendants as a cross-suit and to hold it to be admissible as such.

The trial Court without properly following the fore-quoted observations of the Supreme Court merely on the ground that the defendants, claim is a cross-suit not covered under Order 8 rule 6, held that it cannot be tried in the present suit and, thus, it failed to exercise the jurisdiction vested in it. Had it been a case that the trial Court, after applying its mind and holding that it had the jurisdiction to entertain the claim of the defendants as a cross-suit but in its discretion, it would have not thought fit to permit it to convert or treat it as a cross-suit, the question would have arisen whether in a revision against such a discretionary order, interference should be made or not. But in the Instant case, as already observed hereinabove, the trial Court did not apply its mind to that aspect.

Before parting with this question. I would like to observe that this Court should not be understood to have considered the question and have expressed any opinion as to the maintainability of the cross-suit of the defendant from the point of view of the limitation or other legal objection as could be advanced as to its maintainability by treating it to be a suit These questions did not even arise at this stage. The plaintiff shall be given an opportunity to file their written statement to this cross-suit of the defendants and the trial Court shall decide the matter on its merits.

In the result, this revision is allowed, the trial Court is directed to treat the counter-claim of the defendants as a cross-suit and try it as such. I make no order as to costs.