Ram Niwas vs Risala

V.S. Aggarwal, J.—The present revision petition is directed against the order passed by the learned Civil Judge (Junior Division), Bhiwani dated June 5, 1998. By virtue of the impugned order, the learned trial Court dismissed the application filed by the petitioner-defendants to amend his written statement and incorporate a counter-claim therein.

The relevant facts are that respondent-Risala had filed a civil suit for permanent and prohibitory injunction to the effect that petitioner be restrained from interfering or taking forcible possession from the respondent-plaintiff Seemingly, there is a residential house. The suit as such was being contested. The petitioner submitted an application seeking amendment of the written statement contending that in the written statement that had earlier been filed, it had been mentioned that respondent-plaintiff had illegally encroached on some portion measuring 55-60 sq. yards of Khasra No. 259 in the northern portion of the said Khasra number. It had been pleaded further that this fact came to the notice of the plaintiff-respondent when the land was demarcated. When the written statement was filed, the counter-claim could not be filed inadvertently and may be permitted to be raised/filed at that stage.

Needless to state that respondent-plaintiff contested the said application. It was asserted that there are other co-sharers in Khasra No. 260 and some land measuring 55-60 sq. yards of Khasra No. 259 had been demarcafed. Of course, it was denied that there is any encroachment therein.

The learned trial Court referred to Order 8 Rule 6-A of the CPC and held that counterclaim can be filed before the defendant has delivered his defence or before the time limited for delivering the defence has expired. He went on to hold that the petitioner had to file his counter- claim before delivering his defence. That was not done. Accordingly, the application under Order 8 Rule 6-A was dismissed.

Hence the present revision petition.

Certain precedents had been cited at the bar so as to urge that counter- claim could be set up by the petitioners. But it becomes unnecessary to refer to the same because besides Order 8, Rule 6-A, Order 8, Rule 6-C has also been added in the CPC w.e.f. 1.2.1977. It reads :

"6-C. Exclusion of counter-claim. - Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it think fit."

This provision gives the power to the court in an appropriate case to direct that a separate suit be filed. This is the position in the present case. The civil suit as referred to above was filed by the respondent for permanent and prohibitory injunction against the petitioners. The petitioners claim that the respondent has encroached upon some portion of Khasra No. 259. The present suit filed by the respondent had gone a long way since the trial commenced. It would be, therefore, appropriate that the respondent be directed to file the separate suit. Such a direction can indeed be issued under Order 8, Rule 6-C and Section 151 of the CPC because it would be an exercise in futility to allow the counter-claim and thereupon direct the same thing as mentioned above. Consequently, the revision petition is dismissed. The petitioners would be at liberty to file a separate suit regarding which they had chosen to file an application to amend the written statement incorporating a counter-claim.

Petition dismissed.