Jagdish Pandey and Ors. vs Daya Shanker Pandey & Ors.

Mrs. Poonam Srivastava, J.—Head Sri Anand Swaroop Srivastava and Girish Chandra Yadav for the petitioners.

The present writ petition has been filed challenging the order dated 872004 passed by Additional District Judge Court No. 4, Azamgarh in Civil Revision No. 5 of 2003 and order dated 312004 passed by Civil Judge (Junior Division) City, Azamgarh in Suit No. 361 of 1985. The petitioners/plaintiffs filed a suit for permanent injunction restraining the defendants from making any construction or obstructing flow of Nali over the land in question. The written statement was filed by the defendants. Subsequently counterclaim was filed on 981989. An amendment application was filed for amending the counterclaim on 3151996 which was allowed. Subsequently another amendment application was filed on 3112003 which was numbered as 175 Ka2 for amending the counterclaim. The trial Court was of the view that the nature of the suit will not be altered and as such the amendment application was allowed. The petitioner filed a Civil Revision challenging the order dated 3112003 which has also been dismissed. Both the orders have been challenged in this writ petition.

The submission made on behalf of the petitioners is that Order VIII, Rule 6 provides that the particular of setoff is to be given in written statement and counterclaim by the defendant is entertained under Order VIII, Rule 6A CPC. The argument on behalf of the petitioner is that on a joint reading of Rules 6 and 6A, right to file counterclaim is only in a money suit and not otherwise. Since the present suit is not a money suit as such the counterclaim is not maintainable and the subsequent amendment of the counter claim was also liable to be rejected. The Rules 6 and 6A are quoted below:

�6. Particulars of setoff to be given in written statement. (1) Where in a suit for the recovery of money the defendant claims to setoff against the plaintiffs 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 setoff.

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

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of setoff.

6A. Counterclaim by defendant. (1) A defendant in a suit may, in addition to his right of pleading a setoff under Rule 6, set up, by way of counterclaim 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 counterclaim is in the nature of a claim for damages or not:

Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counterclaim shall be same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.

(5) The counterclaim shall be treated a plaint and governed by the rules applicable to the plaints.�

The main thrust of the arguments of the Counsel for the petitioner is that the defendant in a suit has a right to plead setoff under Rule 6 and by way of counterclaim as provided under Rule 6A, meaning thereby that the defendant can only file counterclaim in a money suit and not otherwise. The Counsel has challenged the maintainability of the counterclaim itself, besides the permission granted by the Courts below to amend the counterclaim. The first counter claim was filed on 981989 which was not challenged by the petitioner till date. The subsequent amendment in the year 1996 was also not challenged as such it is not open for the petitioner to challenge the counterclaim at such belated stage. However, interpretation given by the Counsel for the petitioner is also not acceptable. Rule 6 of Order VIII CPC speaks of a setoff in a money suit, whereas Rule 6A speaks of other claims by a defendants, besides the claim of money. The argument to the effect that the mention of ''Rule 6'' in Rule 6A means that both the rules should be read together is not correct. Rule 6A deals with a counterclaim by a defendant other than money suits and Rule 6 relates to money suits.

Another argument on behalf of the petitioner is that another suit No. 445 of 1995 between the same parties is pending before the Court below and amendment application on behalf of the contesting respondents was rejected by the trial Court in suit No. 445 of 1995 and amendment sought in the other suit has been incorporated by bringing an amendment in the counterclaim of the present suit. We are not concerned with the other suit No. 445 of 1995, the Courts have allowed only amendment of the counterclaim. Perusal of the revisional order dated 872004 shows that the learned Additional District Judge while dismissing the revision has issued direction to the trial Court that the petitioner may be given an opportunity to file a replication and also to frame issues and decide the suit as expeditiously as possible. The Additional District Judge has further directed that the Court will not grant any stay of the proceeding as suit itself relates to the year 1994. I do not find any illegality in the order. The interpretation of Rule 6A CPC given by the Counsel for petitioner is not acceptable.

The provisions of Order VIII, Rule 6A CPC cannot be construed in a limited sense. The contention of the learned Counsel for the petitioner cannot be accepted that the counterclaim is admissible only in a money suit. Several High Courts have ruled that Rule 6A is not limited to money suit alone. It is only Patna High Court in Jaswant Singh v. Smt. Darshan Kaur & Ors., AIR 1983 Patna 132, has given a contrary finding that the right of a defendant to raise a counterclaim under Rule 6A of Order VIII CPC has been limited by the Code only to cases where the dispute is in respect of money claim. This view has been dissented by a number of High Courts. Expressing the contrary view in the case of Ram Sewak v. Sarfuddin, AIR 1991 Orissa 51, it has been ruled that the amended provision of Rule 6A confers an additional right to a defendant, in addition to his right of setoff under Rule 6 to make a counterclaim against the plaintiff. The decision of Orissa High Court was based on a decision of the apex Court in the case of Laxmi Dass Daya Bhai Kabrawala v. Nana Bhai Chunnni Lal Kabrawala, AIR 1964 SC 11. The apex Court even prior to the amendment of 1976 has held as under:

�The question has, therefore, to be considered on principle as to whether there is anything in lawstatutory or otherwisewhich precludes a Court from treating a counterclaim as a plaint in a crosssuit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a crosssuit might not conform to all these requirements, but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a crosssuit is made part of a Written Statement either by being made an annexure to it or as part and parcel thereof, described as a counterclaim, there could be no legal objection to the Court treating the same a a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. Mr. Desai had to concede that in such a case the Court was not prevented from separating the Written Statement proper from what was described as a counterclaim and treating the latter as a crosssuit. If so much is conceded it would then become merely a matter of degree as to whether the counterclaim 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 crosssuit. 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 Order VIII, Rule 6 or in any other provision of the Code which laid an embargo on a Court adopting such a course.�

In fact it appears that the decision of the Supreme Court was not brought to the notice of Patna High Court in the case of Jaswant Singh. Similar view was expressed by Kerla High Court in the case of Raman Sukumaran v. Velayudhan Madhawan, AIR 1982 Kerla 253. The apex Court had interpreted Rule 6 of Order VIII CPC in a very board sense. In the year 1964, at the point of time the Code was bereft of the amended provision of Rule 6A. It is evident this has been brought about only to avoid multiplicity of proceedings. The arguments of the Counsel for petitioner lacks merits, accordingly the writ petition is dismissed.