Jarnail Singh vs Sohan Singh

R.C. Kathuria, J.—This revision petition is directed against the order dated 16.10.1999 passed by the Civil Judge (Junior Division), Dasuya, whereby application filed by the defendantrespondents for restoration of the suit for the purpose of decision of the counterclaim filed by them was allowed.

A few facts have to be noticed in order to focus the controversy involved in this case. PlaintiffGurbax Singh now deceased represented by his legal representativesJarnail Singh had filed suit for declaration and permanent injunction on 19.8.1996 restraining defendantSohan Singh and other three defendants from dispossessing him forcibly from the suit land measuring 41 Kanals 13 Marlas situated in village Urmar, Tehsil Dasuya, District Hoshiarpur fully described in the heading of the plaint wherein the plaintiff claimed himself to be the tenant of the suit land. The suit was contested by the defendants. After the issues were framed in this case on 6.3.1997 and the case was posted for the evidence of the plaintiff, an application along with counterclaim was filed by the defendants on 28.3.1998 claiming therein possession of the suit land on the basis of having acquired ownership over the suit land as per two sale deeds dated 24.6.1996 registered on 25.6.1996 and 27.6.1996. This application remained undecided. The suit of the plaintiff was dismissed as withdrawn vide order dated 19.8.1998 passed by the trial Court in the presence of parties and their counsel. Subsequently, the defendants moved an application under Section 151 of the Code of Civil Procedure, 1908 (for short ''the Code'') with a prayer to decide the counter claim filed by them. The trial Court, after giving opportunity of hearing to both the sides ordered restoration of the suit for the purpose of decision of the counterclaim. It is against this order, the present revision petition has been filed.

I have heard learned Counsel for the parties at length.

At the threshold of the arguments, learned counsel for the petitioner vehemently urged before me that while allowing the application of the defendants, learned trial Judge had totally ignored that counterclaim was filed after 11/2 years of the filing of the written statement and for that reason it could not have been adjudicated upon in the suit filed by the plaintiff and only remedy left to the defendants was to file a separate suit. While countering the submission mae, it was urged by the counsel representing the respondentdefendants that the counterclaim had been filed by the defendants before the dismissal of the suit. Therefore, it had to be decided by the court and the defendants could not be driven to file a separate suit as maintained from the side of the petitioner. Both the parties have referred to case law relating to the controversy raised in this petition in support of their respective stands. It is necessary to notice the same.

First, I would refer the cases on which reliance has been placed from the side of the petitioner.

In Bank of Baroda, New Delhi v. Shri Gurcharan Singh, 1985 R.R.R. 88 : 1986(1) PLR 46, it was laid down as under :

"From a reading of the rules, it is clear that the defendant can file the counterclaim before delivering his defence or before the time limited for delivering his defence expires. He has also to mention that fact in the written statement. It is thus evident that the defendant can file the counterclaim before he files the written statement, and cannot be allowed to do so by amending the written statement. The object of incorporating the provision for settingup the counterclaim before the filing of the written statement appears to be, that the disposal of the suit may not be delayed. In the present case the defendant has been allowed to setup a counterclaim even after the suit had been decreed against him, which, in may view, could not be done."

In Amar Singh and others v. Pritam Kaur, 1996(3) RCR(Civil) 221 (P&H) : 1996(3) PLR 533, it was stated that counterclaim as and when raised has to be decided by the court even when suit is decreed or dismissed. In Shanti Rani Das Dewanjee (Smt.) v. Dinesh Chandra Dey (dead) by LRs., 1997(4) RCR(Civil) 222 (SC) : 1997(8) SCC 174, the facts were that suit was instituted on 15.7.1982 and the application under Order 8, Rule 6A of the Code was filed by the defendants in the suit on 22.6.1985. Taking into consideration the circumstances of the case, it was held that the contention, that cause of action which had arisen long before the institution of suit and for that reason the suit and the counterclaim were barred under Limitation Act, had been raised for the first time before the Apex Court and, therefore, the same was left open to be decided after ascertaining the date of accrual of cause of action on the basis of relevant materials to be placed on record.

Coming to the cases on which reliance has been placed from the side of the respondents, reference has to be made to the case Mahendra Kumar and another v. State of Madhya Pradesh and others, 1987(3) S.C.C. 265, wherein it was observed that the counterclaim can be filed after filing of the written statement. The relevant observations are contained in paras 13 and 15 of the judgment and the extracted portion reads as under :

"The High Court erred in holding that as the appellants had filed the counterclaim after the filing of the written statement, the counterclaim was not maintainable. As the cause of action for the counterclaim had arisen before the filing of the written statement, the counterclaim was, therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. A counterclaim, which is treated as a suit under Section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the right to sue. The District Judge and the High Court were wrong in dismissing the counterclaim. The question of filing a counterclaim arises after a suit is filed by the claimant under Section 8. It may be that there is no substantial difference between a counterclaim and a suit, but nonetheless Rule 6A(1) of Order VIII CPC does not, on the face of it, bar the filing of a counterclaim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counterclaim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limit for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not."

In Suman Kumar v. St. Thomas School and Hostel and others, 1986 R.C.R.(Rent) 218 : AIR 1988 P&H 38, it was observed that where in a suit seeking permanent injunction, filed by a cooperative society through its Secretary, counterclaim was made by the defendant, on the withdrawal of the suit by the plaintiff on the ground that it was barred under Section 6 of the Societies Registration Act, 1860, the claim of the defendant to convert his counterclaim to plaint could not be dismissed on the ground that it will have to be dismissed on the same grounds on which the suit was withdrawn.

In Gurbachan Singh v. Bhag Singh and others, 1996(3) RCR(Civil) 378 (SC) : 1996(1) SCC 770, it was laid down that in a suit for injunction, counterclaim for possession can also be entertained. In another case Jag Mohan Chawla and another v. Dera Radha Swami Satsang and others, 1996(2) RRR 623 (SC) : 1996(4) SCC 699, the facts were that appellant plaintiffs had filed a suit for permanent injunction to restrain the respondentdefendants from interfering with the possession over the property. The respondentdefendants took the stand in the written statement that they had purchased another land situated in a different area and were in possession and enjoyment of the same. They sought counterclaim of permanent injunction to restrain the appellants from interfering with their possession and enjoyment of the said land. The appellants filed their replication in the shape of additional written statement in terms of Order 8, Rule 6E of the Code disputing the stand taken by the respondents in their counterclaim. They also pleaded that the counterclaim is not maintainable. Thereafter, an application under Order 8, Rule 6C read with Section 151 of the Code was filed with a prayer to exclude the counterclaim from the written statement and that application was dismissed. This order was also upheld by the High Court. While rejecting the revision direction was given by the High Court to the trial Court to identify the land to which counterclaim related. An appeal was preferred in the Apex court. While dismissing the appeal, it was observed as under :

"Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6C to seek deletion of the counterclaim. The trial Court had not found it necessary to delete the counterclaim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different property, there arises no illegality warranting dismissal of counterclaim. Nonetheless, both, the claim in the suit and the counterclaim could be tried and decided and disposed of in the same suit.

It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments in produced by Rules 6A to 6G are conferment of a statutory right on the defendant to set up a counterclaim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In subrule (1) of Rule 6A, the language is so couched with 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 subjectmatter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. 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" would show that the cause of action from which the counterclaim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counterclaim expressly is treated as a crosssuit 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 thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protraction, the legislature intended to try both the suit and the counterclaim in the same suit as suit and crosssuit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counterclaim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit."

From the dictum of law laid down in the above mentioned cases the controversy has been crystalised. Firstly, that counterclaim would survive despite dismissal of the suit of the plaintiff whether on account of withdrawal or even on merit. Same would be the position in case where the suit is decreed. Secondly, the counterclaim is not limited only in case of money suit. Rather, counterclaim can be filed in any kind of suit whether it is a suit for injunction or in other type of suit. Thirdly, for filing counterclaim cause of action must have arisen before filing the written statement. Fourthly, the counterclaim can be preferred within a period of three years from the date the right to sue accrues even in cases where no such period of limitation is provided in the schedule of the Limitation Act in terms of the provisions of Section 3(2)(b)(ii) of the Limitation Act. Fifthly, right to file counterclaim is directly relatable to the cause of action and in case such case of action has arisen before or after the filing of the suit and such cause of action continued upto the filing of the written statement or extended date of filing the written statement, the counterclaim can be filed even after the filing of the written statement subject to the period of limitation. Sixthly, even the counterclaim need not relate to the original cause of action, but can be preferred on an independent and different cause of action which had accrued to the defendant after the institution of the suit with one limitation that cause of action should have arisen before the time fixed for filing of written statement expires.

Applying the above principles to the facts of the present case, it is manifest from the stand of the defendants that they had based their counter claim on the basis of two sale deeds dated 24.6.1996 registered on 25.6.1996 and 27.6.1996 and on that basis they had claimed relief of possession over the suit land measuring 41 Kanals 13 Marlas. The present suit came to be filed on 19.8.1996. The cause of action had accrued to the defendants even prior to the filing of the suit. Even otherwise, the respondentdefendants had filed the application for filing of counterclaim in the court on 28.3.1998 while the suit filed by the plaintiff was pending. No doubt, they had filed written statement on 28.8.1996, but filing of the counterclaim on 28.3.1998 is directly relatable to cause of action which had arisen before the time fixed for filing of the written statement expired. They could claim their possession on the basis of title acquired by them as per their allegation viz. on the basis of sale deeds dated 24.6.1996 registered on 25.6.1996 and 27.6.1996. Merely because they had filed counterclaim after 11/2 years of their filing the written statement would not debar them from getting their counterclaim decided in the suit filed by the plaintiff.

For the aforesaid reasons, there is absolutely no merit in the revision petition and the same is accordingly dismissed.

Revision dismissed.