Narayan Dutt vs Subhash Chander

This Civil Second Appeal is directed against a judgement and decree dated 30.8.2000 passed by Addl. District Judge Reasi. Both the courts

below have returned concurrent findings on factual issues like status of the appellant, (declared him to be a licencee). The only question of law

which seemed to be substantial to the court was one formulated on 14.9.2000 as under :

Do the provisions of counter claim by defendant contemplated in Rule 6A of Order 8 C.P.C. also relate to suits which are not money suits?"".

Mr. S.S. Lehar appearing for the appellants, has painstakingly dwelt upon the general principle laid down by Rule 6 of Order 8 C.P.C. which

relates to ""set off'. According to him this rule relates to money suits only and even after incorporation of Rule 6A to G, which came into force with

effect from 15.8.1983, the principle of set off does not undergo any change and must relate to money suits only. In that behalf he has laid much

stress on Rule 6F (supra). He has tried to impress upon the following expression of Rule 6F :

And if any balance is found due to the plaintiff or the defendant as the case may be the Court may give judgement to the party entitled to such

balance"".

He articulately tried to suggest that the word ""balance"" must connote a money balance only and cannot be perceived with respect to any

immovable property like the one involved in the present suit.

I have registered this argument earnestly.

This is not for the first time that Rule 6A has come up for interpretation. Same came up before different High Courts of the country in the following

cases also:

AIR 1994 Bombay 196

AIR 1988 Pb. andHaryana38.

AIR 1982 Kerala 253

AlR1983Patna132

High Courts of Bombay, Punjab and Haryana and Kerala have held that after the interpretation of Rule 6A, the principle of counter claim is

permissible in suits other than money suits also. The Patna High Court, however took a divergent view, which is projected by Mr. Lehar. This

divergence was put at rest by an authoritative judgement of the Supreme Court delivered in Jagmohan Chawla and Another vs. Dehra Radha

Swami Satsang and Others reported in AIR 1996 SC 2222. Their lordships of the Apex Court have discussed whole of the law relating to counter

claims after 1983 amendment and finally held that the object of the amendment by introducing Rule 6A to 6G is to confer a statutory right to the

defendant to set up a counter claim, independent of the claim on the basis of which the plaintiff laid the suit. The fiction of law relating to counter

claim was amplified so as to discourage multiplicity of suits and enable a civil court to deliver judgements on the strength of counter claims, which

not only arise out of a cause of action in its strict sense but which are connected thereto. In this behalf the judgement of the Supreme Court is quite

lucid and exhaustive. I would, therefore place on record para 5 of this judgement in verbatim so as to clinch all the issues raised by Mr. Lehar and

to ward off all the doubts which may arise in anybody's mind. Para 5 reads as under:

The question, therefore is whether in a suit for injunction, counterclaim for injunction in respect of the same or a different property is maintainable ?

Whether counter claim can be made on different cause of action ? It is true that preceding CPC Amendment Act 1976, Rule 5 of order 8 limited

the remedy to set off or counter claim laid in a written statement In a money suit. By CPC Amendment Act, 1976 Rules 6A to 6G were brought to

statute. Rule 6A(1) provides that a defendant may, in addition to his right of pleadings a set off under Rule 6, set up by way of counter claim

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 bit before the defendant has delivered his defence has expired. Whether such claim is in the nature of a claim for damage or not.

A limitation put in entertaining the counter claim is as provided in the proviso to sub rule (1) namely the counter claim shall not exceed the

pecuniary limits of the jurisdiction of the court. Subrule (2) amplified that such counter claim shall have the same effect as a cross suit so as to

enable the court to pronounce a final judgement in the same suit, both on the original claim as on the counter claim. The plaintiff shall be given

liberty to file a written statement to answer the counter claim of the defendant within such period as may be fixed by the court. The counter claim is

directed to be treated, by operation subrules (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was

brought on statute, this court in Laxmi Dass Dahyabhai Kabarwalaya vs Nanabhai Chunilala Kabarwala (1964) 2 SCR 567(AIR 1964 SC 11),

had come to consider the case of suit and cross suit by way of counter claim. Therein, suit was filed for enforcement of an agreement to the effect

that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full

satisfaction of the share of the partner in the partnership and thereby decree for settlement of accounts was sought. Therein the legal

representatives of the deceased partner contended in the written statement not only denying the settlement of accounts but also made a counter

claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat

the counter claim as a cross suit. The trial court dismissed the suit and the counter claim. On appeal, the learned Single Judge accepted the counter

claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal per majority, this court had accepted the

respondents plea in the written statement to be a counter claim for settlement of their claim and defence in written statement as a suit. The counter

claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money

suits decree must be conformable to Order 20 Rule 18 CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a

statutory right to the defendant to set up a counter claim 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 coached 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 subject matter 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 of claim in respect of a cause of action accruing with the defendant"" would show that the

cause of action from which the counter claim arise 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 counter claim expressly is treated as

a cross suit with all the indicia of pleadings as a plaint including a duty to aver his cause of action and also payment of the requisite court fee

thereon. Instead of relegation the defendant to an independent suit, to avert multiplicity of the proceedings and needless protection, the legislature

intended to try both the suits and the counter claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other

words, a defendant can claim any right by way of a counter claim in respect of any cause of action that has accrued to him even though it is

dependent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file and

separate suit. 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 counter claim. It is seen that the trial court had not found it necessary to delete the counter claim. 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, there arises no illegality warranting dismissal of the counter claim. Nonetheless, in the same suit, both the claim in the suit and the counter

claim could be tried and decided and disposed of in the same suit. In Mahindra Kumar vs. State of Madhya Pradesh (1987) 3 SCO 265 (AIR

1987 SC 1395) where a bench of two Judges of this court was to consider the controversy, held that since the cause of action for the counter

claim had arised before filing of the written statement, the counter claim was maintainable. The question therein was of limitation with which we are

not concerned in this case. Thus considered we find that there is no merit in the appeal"".

The argument of Mr. Lehar stands already answered in the above judgement which makes it clear that Rule 6, after its amendment does not only

relate to money suits bit also to suits other than money suits. The counter claim per necessity does not require to relate to the cause of action

projected by the plaintiff in the original suit but can relate to any other cause of action connected with the property. The possible limitations which

the amended rules should be taken to have laid, are those of jurisdiction and period of limitation. This judgement also covers the ancillary argument

of Mr. Lehar when he argued that in a suit for permanent injunction a claim of possession cannot be set up by way of a counter claim. 1 regret my

inability to fall in line with Mr. Lehar because on facts he is not correct. The relief sought by the respondent, by way of counter claim. So far as that

relief is concerned the opening sentence of the Supreme Court judgement reads as under :

. ""In a suit for injunction, a counter claim for injunction in respect of the same or a different property is maintainable"".

That must claim the argument of Mr. Lehar. Even if that sentence would not exist, I am of the firm view that because of the lucidity of the

judgement reproduced above, any cause of action that would have accrued to the defendant in respect of the property could have been claimed by

way of counter claim. That seems to be the pith and substance of the Supreme Court judgement.

Before parting with the judgement, I would like to place on record the anxiety shown by Mr. Lehar in respect of what he calls, as a violation of

Court Fee Act. He has urged that by allowing any type of relief to be set up by way of counter claim the object of Court Fees Act will be

thwarted. I again do not agree because on facts again Mr. Lehar is not correct. The defendant has paid the requisite court dee in the relief of

mandatory injunction and even otherwise a judgement of a Division Bench of this court delivered in a case titled in AIR 1964 J and K 99 has

authoritatively held that a suit for injunction against a licencee whose licence has been terminated by a valid notice is maintainable.

On the strength of the observations made above, I find the substantial question of law formulated by this court having been answered. I,

therefore, find no merit in this appeal, which is accordingly dismissed, with costs. Let a decree be drawn by the Registry accordingly.

Mr. Lehar, makes a prayer that his client be allowed three months time to vacate the premises as he has to make an alternative arrangements.

Mr. L.K. Sharma, has no objection to such a prayer being allowed. Therefore, this judgement and decree should not be executed till 27th of April,

2001. Meanwhile, the appellant should not sublet or part with the premises or otherwise change its status.