M.S. Mohammed Yahya vs M.S. Mohammed Jaffar and another

Sathiadev, J.—This petition in filed to review the order of this Court dated 7-8-1987 in C.R.P. 2669 of 1987 Since reported in 1988-2-L.W. 36. Mr. R.S. Venkatachari, learned counsel for the petitioner, submits that, unless the suit filed by the plaintiff is retained on the file of the Court, a counter-claim filed by a defendant under O. 8 R. 6-A, C.P.C., cannot be independently disposed of. He lays emphasis on O.8 R.6-A (2) which states that a counter-claim shall have the same effect as a cross-suit to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. According to him, if the plaintiff''s suit is dismissed, either on his own volition or on merits or because of default committed by him for non-appearance, then the counter claim filed by the defendant, unless simultaneously given a disposal, cannot survive on the file of the Court on its own. He strenuously pleads that, being styled as a counter claim and to have the same effect as a cross suit, its survival is dependent upon what happens to the suit filed by the plaintiff. But for the suit, a counter-claim would not have been launched. The Court entertains a counter-claim because, the suit filed by the plaintiff is pending before it. When its original is dependent upon, such a suit, its continuance also will have to depend upon its existence. When a court is bound to pronounce a final judgment in the same suit, the direction issued by this Court that after the disappearance of the suit of the plaintiff by withdrawal, the counter claim could be registered as a suit and disposed of accordingly, is not provided for in the Code. As far as O.8 R.6.A(2) is concerned, it envisages suits in which a counterclaim is filed and both of them can be disposed of simultaneously, in which event, the Court has to pronounce a judgment on the counter claim in the same suit. This provision is intended to prevent the Court from pronouncing separate judgments in a case wherein both the suit claim and the counter claim are dealt with together, till the end.

Reliance is placed on T.K. V.S. Vadiavoor Nachari Sons v. Krishnamachari 1983-2-M.L.J. 4, but it was a case wherein defendant had been set ex parte and it was then held that there being one judgment, it is enough if there is but a single motion on the part of the defendant to set aside that judgment and there is no need to treat as two decrees; one as an ex-parte decree so far as the plaintiff''s suit claim is concerned, and the other, as a dismissal for default so far as the defendant''s claim is concerned. Learned counsel also relied on the decision in Basudeb Narayan Singh and Others Vs. Shesh Narayan Singh and Others, , which has been already considered in the earlier order. In Daga Films Vs. Lotus Production and Others, , it was held that, even if the plaintiff''s claim is not proceeded with or given up or withdrawn or breaks down for any reason whatsoever, the defendant has still the right to get a decree on the counter claim as claimed in the written statement. Hence, none of these decisions support the contentions put forth by learned counsel.

In respect of such of those instances in which the suit filed by plaintiff gets disposed of earlier, by withdrawal, the counterclaim would not get dismissed on that score. No doubt, such a claim is entertained by Court because of the existence of the suit already filed by the plaintiff; but O.8, R.6-A (2) states that it shall have the same effect as a cross-suit. But for the amendment introduced by Act 104 of 1976, the defendant, for the reliefs set forth in the counter claim, could have filed only a separate suit. Its prospect would not be dependent upon existence or otherwise of any other suit. Therefore, when a claim covered by such a suit is now allowed to be agitated as a counter claim in a suit, and treated as a cross suit, in such of those instances wherein they do not have a simultaneous disposal, the cross-suit will have to run its course, without being dependent upon the suit of the plaintiff.

As for the reliance made on the expression that Court has to pronounce a final judgment in the same suit, it is referable to such of those instances in which they got disposed of together. As to whether a court is bound to render separate judgments or a single judgment, the latter portion states that it shall be by a single judgment, This expression has no relevance about the counter-claim surviving the disposal of the suit and being treated as a separate suit.

That was why under sub-R.6(d), it has been specifically provided that, if the suit filed by the plaintiff is stayed, discontinued or dismissed, the counter-claim made nevertheless be proceeded with. Therefore, there is a clear directive existing in the Rules itself, as to what could be done when the suit of the plaintiff is dismissed. This aspect has already been dealt with in the order dated 7-8-1987. Hence, the dismissal of a suit by withdrawal is covered by this provision. When the Court is enjoined to proceed with the counter claim after the dismissal of the plaintiff''s suit, it could only be by assigning a separate number to the counter-claim, because it is in the nature of a cross-suit. R.6-A (3) states that plaintiff shall be at liberty to file a written statement in answer to the counter-claim and R.6-A (4) provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaintiffs. These provisions further amplify that the counter-claim filed under certain circumstances has to be dealt with as a separate suit and disposed of on its own merits. When the counter claim is in the nature of a plaint, and the suit is to have the effect of a cross suit and when it could be proceeded with inspite of dismissal of the plaintiff''s claim, there is practically no illegality in allowing the counter-claim filed by the petitioner herein (second defendant in the suit) to be further proceeded with bearing a separate number, irrespective of the suit of the plaintiff being dismissed or withdrawn.

Even then, Mr. R.S. Venkatachari, learned counsel would state that, unless in the Code, a provision is made for treating a counter claim as a separate suit, under such circumstances, the same number given in the suit will have to be retained and for which purpose what could be done is to record the statement of the plaintiff that he is withdrawing the suit, but without pronouncing the order of dismissal as withdrawn, it must be retained on the file of the Court till the counter claim is disposed of, failing which the defendant would be prejudiced by being assigned a new number and thereby the disposal of the counter-claim would be further delayed. After making the endorsement that he is withdrawing the suit, no useful purpose would be served by keeping the suit alive. In the counter claim he may thereafter participate or take the consequence of non-participation. He cannot be compelled to further pursue the suit. He may like to get out of the sickening delays in civil proceedings which spread over decades. Being aware of the futility of the counter claim, which defendant himself may feel tired of and get out of court as he was doing, he may not choose to participate in it. Therefore when a suit filed by plaintiff gets discontinued or dismissed, in view of R.6 (d), the counter-claim filed having the effect of a cross-suit Will have to be necessarily assigned a separate number, and the counter-claim made would have to be nevertheless further tried by the court.

It is stated that after the order dated 7-8-1987, during the past one year, no progress had been made for numbering the counter-claim as directed by this Court. In the event of the trial Court having not numbered the suit separately, it is directed to number the counter claim by a separate suit number on or before 26-8-1988, on production of a steno copy of the order, and post it for first hearing on 2-9-1988, on which day it is open to petitioner herein to move the Court for any reliefs to safeguard the properties, pending disposal of that suit. It is claimed that by being numbered as a suit filed in 1988, it would delay the disposal of the counter claim filed years back. He has filed C.S. 736 of 1985 for a scheme to be framed and it is pending disposal. It would, therefore, be appropriate to direct the newly numbered suit to be heard along with the suit filed by him in C.S. 736 of 1985, so that the time claimed to have been lost is thus made good. Hence, for the reasons stated above, there is no error apparent on the face of the order dated 7-8-1987 and hence, tins review petition is dismissed.