Kehar Singh vs Hukam Singh and Another

L.N. Mittal, J.—Defendant has approached this Court by way of instant revision petition under Article 227 of the Constitution of India assailing order dated 03.10.2013 (Annexure P-5), thereby dismissing application (Annexure P-3) filed by the defendant-petitioner under Order 1 Rule 10 of the CPC (in short-CPC) and for consequential amendment of title of plaint, by impleading legal representatives (LRs) of Rati Ram (since deceased) as party to the suit/counter-claim. Respondents-plaintiffs have filed suit against defendant-petitioner vide plaint (Annexure P-1) for possession of suit land comprising of Khasra No. 2706 and for mesne profits.

The defendant, in his written statement, made counter-claim of mesne profits regarding land of Khasra No. 2707, which was allegedly on lease with the defendant from Rati Ram (since deceased).

The defendant, in his application (Annexure P-3), pleaded that while preparing the case for defendant''s evidence, it was found that LRs of Rati Ram, although necessary party to the suit, have not been impleaded as party in the suit. The plaintiffs, by filing reply (Annexure P-4), opposed the application (Annexure P-3) and controverted the averments made therein.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner, relying on judgment of Bombay High Court in the case of Teofilo Barreto Vs. Sadashiva G. Nasnodkar and Others, contended that counterclaim is just like a separate suit, and therefore, provision of Order 1 Rule 10 CPC is also applicable and new party can be added. Reliance has also been placed on judgment of Hon''ble Supreme Court in the case of Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, , wherein it was held that counter-claim by defendant can be made in respect of any cause of action, which may be independent of the cause of action averred by the plaintiff.

I have carefully considered the aforesaid contentions.

Judgment of Bombay High Court in the case of Teofilo Barreto (supra) is not applicable to the instant case because the same did not pertain to interpretation of Order 1 Rule 10 CPC in regard to its applicability in the case of counter-claim. On the contrary, counsel for the petitioner referred to judgment of Kerala High Court mentioned in the aforesaid judgment of Bombay High Court. However, said judgment of Kerala High Court has not been produced to depict as to what was the ratio of law laid down in that case and in what facts and circumstances. On the other hand, Order 8 Rule 6A CPC stipulates that counter-claim can be set up by defendant against the plaintiff. The expression `against the plaintiff used in the aforesaid provision is highly significant for the purpose of this revision petition. The aforesaid expression would depict that counter-claim has to be made against the plaintiff only and not against the third party. Consequently, a third person cannot be added as a new party to the suit for adjudicating counter-claim because counter-claim has to be confined against the plaintiff only. In this view of the matter, I am supported by observation of Hon''ble Supreme Court in the case of Jag Mohan Chawla (supra), wherein also it has been held that defendant can also claim in the counter-claim injunction `against the plaintiff. Thus, relief in the counter-claim can be claimed against the plaintiff and not against the third person. The view taken by the trial court in this regard is, therefore, fully justified and does not suffer from any perversity, illegality or jurisdictional error.

In addition to the aforesaid, LRs of Rati Ram - alleged lessor also cannot be said to be proper or necessary party for adjudication of the suit or counter-claim. The defendant was allegedly lessor under Rati Ram over land of Khasra No. 2707. In the instant counter-claim, however, the defendant is claiming mesne profits of the said land from the plaintiff and not from Rati Ram or his LRs. Consequently, LRs of Rati Ram cannot be said to be proper or necessary party to the suit or counter-claim. For the reasons aforesaid, I find no merit in this revision petition, which is accordingly dismissed in limine.