Ramakant Thakur and Others vs Satya Narain Choudhary and Others

B.P. Singh and Ashish N. Trivedi, JJ.—Heard counsel for the parties.

A learned Judge of this Court has referred this revision petition before a Division Bench for disposal. The question which arose for his consideration was whether a counter claim under Order 8, Rule 6A of the CPC could be raised by the Defendant in a suit involving a claim other than a money claim. A Division Bench of this Court in the case of Jashwant Singh Vs. Smt. Darshan Kaur and Others, took the view that a Defendant could raise a counter claim under Order 8, Rule 6-A only in suit involving money claim, and not in any other type of suit. It was brought to his notice that in the case of Pathrose Samual and Another Vs. Karumban Parameswaran, , a Single Bench of the Kerala High Court has taken the same view, but in the case of Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, although the question was not directly in issue, a counter claim under Order 8 Rule 6-A of the CPC was allowed in a suit for declaration of title. The learned Judge therefore, referred the matter to a Division Bench as he considered the question to be of some significance.

Counsel for the parties agree that the question is no more res integra as it is covered by the binding precedents of the Hon''ble Supreme Court reported in (1996)1 Supreme Court Cases 770 (Gurbachan Singh v. Bhag Singh and Ors.) and Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, . It has now been held that a counter claim under Rule 6 of Order 8 can be pleaded even in a suit other than suit involving a money claim.

It is not in dispute that the Plaintiff/opposite party filed a suit for specific performance of an agreement against Defendant 1st Party on 29.3.1982. During the pendency of the suit Defendant 2nd Party purchased the lands, subject matter of suit on 6.3.1983. The Defendant 2nd Party filed his written statement in the suit on 3.11.1983. Subsequently in the year 1983 the Plaintiff filed an application for amendment of the plaint which was allowed. Thereafter the Defendant 2nd Party filed his additional written statement in reply to the amended plaint pleading therein a counter claim and praying that the Court may be pleased to declare his title in respect of the lands purchased by him which were the subject matter of the suit, and also for confirmation of possession and in the alternative, for recovery of possession. Before the trial Court, the Plaintiff objected to the counter claim on the ground that such a counter claim could not be raised in a suit other than a suit involving a money claim. That objection was upheld by the trial Court by its impugned order dated 13.7.1989.

Having regard to the law laid down by the Supreme Court, it can, no more, be disputed that a counter claim under Order 8 Rule 6-A can be raised even in a suit involving a claim other than the money claim.

The question then arises whether the counter claim is barred by limitation. That aspect of the matter is also covered by a decision of the Supreme Court in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, . It was held by the Supreme Court:

The next point that remains to be considered is whether Rule 6A(1) of Order VIII CPC bars filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counter claim by the Defendant after he had filed the written statement. What is laid , down under Rule 6A(1) is that a counter claim can be filed, provided the cause of action had accrued to the Defendants before the Defendant had 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.

It was pointed to us that the Supreme Court in Gurbachan Singh''s case (supra) has observed;

The limitation was that the counter claim or set-off must be pleaded by way of defence in the written statement before the Defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter claim is in the nature of a claim for damage or not.

There appears to be some printing error in the judgment because in the aforesaid sentence it is stated that the counter claim or set-off must be pleaded by way of defence in the written statement before the Defendant filed his written statement. There appears to be obvious printing error. However, the law as laid down in Mahendra Kumar''s case is quite clear and directly on the point.

In these circumstances, this revision is allowed and the impugned order of the IVth Sub-Judge, Samastipur dated 13.1.1989 in Title Suit No. 24/82-63/88 is set aside. The trial Court will now proceed with the suit in accordance with law.

Counsel for the Plaintiff/opposite party submitted that he may withdraw the suit since the sale deed has been executed in his favour. A Plaintiff is always at liberty to withdraw his suit, and it is for the Court below to consider the application in accordance with law as and when filed.