K Raveendran vs K Mruthyunjayan and another

M. M. Parked Pillay, J.—Revision petitioner is the plaintiff in O S 71 of 1985 the Munsiff''s court, Kayamkulam. The defendants filed written statement in which they set up a counter-claim to the effect that there was an agreement of sale of the plaint schedule property between the plaintiff and the 2nd defendant on 24-10-1976 and that advance was also paid. The defendants prayed for a decree for the specific performance of the above agreement. Plaintiff filed an application under Order VIII Rule 6 C of the C.P.C. for exclusion of the counterclaim on the ground that the claim for specific performance is time barred, that the second defendant was not willing to perform her part of the contract and that the cause of action is different from that of the suit. The learned Munsiff dismissed the petition holding that the counterclaim set up by the defendants has to be necessarily considered in the suit. Learned counsel for the plaintiff submitted that the only question to be considered in the suit is regarding the declaration set up by the plaintiff and hence there is no scope for any counter-claim. Counsel for the defendants submitted that in view of Order VIII Rule 6 A of the C.P.C. the above contention is not at all tenable.

In paragraph 8 of the plaint it is alleged that the plaintiff and the second defendant had entered into an agreement where by the former agreed to sell the property for Rs 13,000/- and that the latter had paid Rs. 8,000/- The agreement is stated to have been executed on 4-10-1976. The plaintiff''s case is that the second defendant committed default of the agreement and that the agreement is no longer in force. Defendants 1 and 2 refuted the allegations in the plaint. In paragraph 13 of the written statement they have set up counterclaim for specific performance of the agreement.

The contention of the revision petitioner is that a counter-claim can be made only in a suit for realisation of money and not in a suit where the plaintiff seeks declaration as to his right over the property. Rule 6 A to Rule 6 G of the C.P.C. are new rules. They confer in addition to a right of set off under Rule 6 a statutory right to file a counterclaim.

The new rules now confer a statutory right to a defendant to set up a counterclaim. It is not at all necessary that the claim should be for a liquidated amount. The above position is very clear from the words "a claim for damages or not" in Rule 6 A. Order 8 Rule 6 A [1] provides that a defendant in a suit may, in addition to his right of pleading a set off under Rule 6 setup 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 counter claim is in the nature of a claim for damages or not. Thus it can be seen that a defendant can set up a counterclaim whether it be in the nature of a claim for damages or not. There is no merit in the contention of the revision petitioner that a counterclaim can be made only with regard to a claim for liquidated damages or in a suit for realisation of any amount by the plaintiff. The words "a claim for damages or not" in Rule 6 A would unambiguously show that a counterclaim can be brought in respect of any claim that can be the subject matter of an independent suit. It cannot be said that a counterclaim can be confined Only to money claims or to causes of action of the same nature as the original action. There is no justification for the conclusion that the counterclaim relates to or must be connected with the original cause of action or matter. Order 8 Rule 6 A envisages that it is open to a defendant to prefer a counterclaim against the claim of the plaintiff The words "any right or claim in respect of cause of action accruing to the defendant against the plaintiff" definitely indicate that the cause of action from which a counterclaim arises need not necessarily arise from or have any relationship or connection with the cause of action pleaded by the plaintiff. A counterclaim can also be made by a defendant by setting up a cause of action which has accured since the date of suit. Order 8 Rule 6 A (2) provides that a counterclaim 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 counterclaim. It is always open to the plaintiff to file written statement in answer to the counterclaim of the defendant. Order 8 Rule 6 (A) (4) makes the position clear that the counterclaim shall be treated as a plaint and governed by the rules applicable to plaints. A reading of order 8 Rule 6 A would make the position very clear that a counterclaim which can be set up by a defendant is not limited to suit for realisation of money or compensation for damages. Counterclaim can be made in respect of any cause of action according to the defendant against the plaintiff. Of course when a counterclaim is made by a defendant he has to set up all material facts which he relies in support of it. In the written statement it is the defendants'' case that plaintiff has agreed to sell the property to them. There is no merit in the contention of the plaintiff that in view of the nature of the claim in the suit the defendants cannot set up a counterclaim. It is always open to a defendant to set up a counterclaim against the claim of the plaintiff in respect of a cause of action accrued to him either before or after filing of the suit.

There is no merit in the contention of the plaintiff that in the nature of the case the counterclaim for specific performance is not maintainable.The learned Munisiff has rightly held that there is no bar in deciding the counterclaim set up by the defendant in the suit itself.

There is no merit in the Civil Revision Petition and hence the same is dismissed. There is no order as to costs.