Surat Ram and Another vs Asha Ram

T.R. Handa, J.—This Revision Petition arises out of civil suit No. 123/1 of 1981 which has been instituted by the present Respondent Aslia Ram against the present petitioners and is presently pending in the Court of the Sub-Judge, Nalagarh. The facts and circumstances which obliged the petitioners (original Defendants) to approach this Court may first be narrated.

The petitioners and the Respondent are brOrs. , being the sons of the same father, Shri Nanak Chand, though from his different wives. The petitioners are from the first wife while the Respondent is from the second wife of Shri Nanak Chand. Shri Nanak Chand died intestate in Sambat 1985 corresponding to 1928 A.D. He left behind the petitioners and the Respondent as his only legal heirs. According to the case of the plaintiff-Respondent, Shri Nanak Chand at the time of his death owned land which measures 63 bighas 16 biswas in lieu of which the land in suit measuring 61 bighas 9 biswas, as detailed in the heading of the plaint was allotted during the settlement and consolidation proceedings which took place after the death of Shri Nanak Chand. The Plaintiff wanted to get his l/3rd share in this land separated. He accordingly applied to the Revenue Officer for partition. The Defendants, that is, the present petitioners opposed that prayer of the Plaintiff for partition on the plea that the Plaintiff had no title to any part of the suit land. Since the question of title was raised in the partition proceedings, the Revenue Officer directed the Plaintiff to get his title established in a civil Court of competent Jurisdiction. This made the Plaintiff to institute his suit out of which the present proceedings arise. The Plaintiff in his suit had claimed a declaration to the effect that he was a co-sharer or co-owner in possession to the extent of l/3rd share in the land referred to above and that the Defendants had no right to deny his title or to prevent the Plaintiff from getting his l/3rd share partitioned.

The petitioners-Defendants in their written statement, inter-aliq, pleaded that the total estate left by their father, Shri Nanak Chand, comprised of an area of 95 bighas 16 biswas as detailed in para 5 (ii) of their written statement and not 63 bighas 16 biswas as claimed in the plaint. In lieu of the aforesaid land left behind by Shri Nanak Chand, land measuring 95 bighas 14 biswas as detailed in para 6 of the written statement had been allotted during the consolidation proceedings. The main plea of the Defendants was that after the death of their father there had been some arrangement inter-se parties in terms of which out of the estate of their father, land measuring 34 bighas 5 biswas as detailed in para 6 (i) fell to the share of the Plaintiff while the remaining land measuring 61 bighas 9 biswas forming subject matter of the suit fell to the share of the Defendants. In addition to the various pleas raised by them in defence of the suit, the Defendants raised certain pleas by way of counter claim on the basis of which they prayed for a decree of declaration to the effect that they were co-owners/co-sharers to the extent of 2/3rd share in the land measuring 35 bighas 14 biswas as detailed in para 6(ii) of their written statement.

The written statement was filed on 26-11-1981. The Plaintiff was allowed thereafter to file rejoinder to the written statement. After such rejoinder had been filed issues were framed on 10-5-1982 which covered all the pleas raised in the pleadings including the pleas raised by way of counter-claim.

It was thereafter on 3-8-1983 that the Plaintiff made his application praying that the paragraphs in the written statement pertaining to counter-claim be deleted and the issues framed on the basis of such paragraphs be struck off. This application purports to have been made under Order VI Rule 16, Order XIV Rule 5 and Section 151 CPC. The Defendant (petitioner) opposed that prayer. The trial court, however, vide its order dated 10-2-1984 allowed that application impliedly directing thereby that the various pleas raised in the written statement by way of counter-claim be deleted and the issues framed covering such pleas be struck off.

It is this order dated 10-2-1984 passed by the trial Court which is the subject matter of challenge in the present revision petition.

The submissions made on behalf of the petitioners in support of their challenge against the impugned order are short and simple. They are like this:

Rule 6A of Order VIII CPC now confers a statutory right on the Defendant to set-up by way of counter-claim any right or claim in respect of which cause of action has accrued to him against the Plaintiff before the day, the defence is delivered. This right to set-up the counter-claim, proceeds the submission, is available regardless of the nature of the claim set-up as counter-claim or of the suit iri which it is set-up since the plain language employed in Rule 6A (supra) mentions of no such bars. The only limitation found in Rule 6A as per submission of the petitioners is that the counter-claim set-up must not exceed the pecuniary jurisdiction of the trial court. Once such a counter-claim has been set-up, the Court has no option but to adjudicate upon the same unless it orders exclusion thereof in exercise of the jurisdiction vested in it under Rule 6C of Order VIII. This jurisdiction can, however, be exercised only on an application made to that effect by the Plaintiff before the settlement of issues..In the instant case the counter-claim having been validly set-up in the written statement and put into issues, the Court had no jurisdiction to order its exclusion after the issues had been settled.

The counter submission made on behalf of the Respondent-plaintiff is still more simple. As per this submission, a counter-claim within the contemplation of Rule 6A of Order VIII CPC must pertain to a claim in money and it can be setup only in a suit for recovery of money. The counter-claim as set-up by the petitioners-Defendants in their written statement in the instant case, being not a claim in money nor having it been set-up in a suit for recovery of money, was not maintainable in law and had been rightly excluded by the trial court. Reliance in support of this submission was placed on a Division Bench decision of the Patna High Court given in the case of Jashwant Singh Vs. Smt. Darshan Kaur and Others,

From the rival submissions made on behalf of the parties, the following questions would arise for consideration:

Whether the right to set-up a counter-claim conferred on a Defendant by Rule 6 of Order VIII CPC is available only in a suit for recovery of money or in every suit irrespective of its nature?

Whether the right or claim which may be pleaded by way of a counter-claim is restricted to the claim in money only or it can relate to any civil right or claim which can be enforced by an independent suit ?

What are the options open to the Court in dealing with a counter-claim once it has been lawfully pleaded on behalf of the Defendant under Rule 6A of Order VIII CPC?

The answers to these questions would naturally turn round the correct interpretation and appreciation of the language employed in the various provisions of the Code dealing with the subject of counter-claims. These provisions are found in Rules 6A to 6G of Order VIII CPC which were inserted in the Code for the first time by Section 58 of the CPC (Amending Act 1976), hereinafter called �the Amending Act�. They read:

6F. Where in any suit a set-off or counter-claim is established a defence against the Plaintiff�s claim, and any balance is found due to the Defendant as the case may be, the Court may give judgment to the party entitled to such balance.

6G. The rules relating to a written statement by a Defendant shall apply to a written statement filed in answer to a counter-claim.

It may be observed at this stage that the expression �counter-claim� had not been accorded a statutory recognition before the enactment of the Amending Act. The law then re cognized only a plea of �set-off� in terms of Rule 6 of Order VIII. As is obvious from the plain language of this Rule, a plea of set-off which was in main a plea of defence, could be raised only in a suit for the recovery of money and the set-off could be pleaded only in respect of an ascertained sum of money. With the enforcement Of the Amending Act, the counter-claim has now been specifically recognised in law and it can now be set up by a Defendant as a matter of right under Rule 6A of Order VIII. Whereas Rule 6 of Order VIII provides in no ambiguous terms that a set-off can be claimed by a Defendant only in a suit for recovery of money, the language of Rule 6A places no such restrictions or limitations on the nature of the suit in which a plea of counter-claim may be set up. This is obvious from the opening words of these two provisions which in the case of Rule 6 read �where in a suit for recovery of money.....� and in the case of Rule 6A read �a Defendant in a suit may set up by way of counter-claim.�

In case the right to set up a counter-claim was intended to be restricted to money suits only, the Legislature must have qualified the expression �in a suit� as used in Rule 6A by adding the words �for the recovery of money� as has been done in Rule 6. Reading Rules 6 and 6A together, there can, in my opinion, be no escape from the conclusion that whereas a plea of set-off can be claimed only in a suit for the recovery of money, a counter-claim can be set up in any suit irrespective of its nature.

We shall now once again revert to the language of Rule 6A in order to find an answer to the next question, whether there is any limitation or restriction .placed on the nature of the right or claim which may be set up by the Defendant by way of a counter-claim. The relevant parts of this Rule read �a defendant.... may set up by way of counter-claim against the claim of the Plaintiff any right or claim in respect of a cause of action. .... � As I read this language, it can admit of no bar or restriction whatever on the nature of the right or claim which may be set up by the Defendant by way of a counter-claim. The use of the phrase �any right or claim� provides a clear indication that no curbs were intended to be placed on the nature of the claim or right which may be set up by the Defendant by way of counter-claim. In other words, such a right or claim may or may not be a claim in money.

The words �against the claim of the plaintiff� as used in Rule 6A, however, do appear to be of some significance in this connection. The use of these words would suggest that the right or claim that may be set up by way of a counter-claim should be against the claim of the Plaintiff in the sense that there must be some nexus between the claim made by the Plaintiff in his suit and the claim setup by the Defendant by way of counter claim. This nexus should be such that it may legitimately be said that the counter-claim set up by the Defendant is against the claim of the plaintiff. The idea being that the two claims, the one set up in the suit by the Plaintiff and the other set up by way of counter-claim by the defendant, are capable of being conveniently disposed of together. In this view of the matter it may not be open to the Defendant to set up a right of easement in a suit brought for the recovery of money and the vice versa. Except for this restriction with respect to the nexus between the claim made in the suit and the claim set up by way of a counter-claim, I can appreciate of no other bar, limitation or restriction on the nature of the claim or right which may be set up by way of a counter-claim. It may be observed that where there is no connection between the claim made in the suit and the claim set up by way of counter-claim or a joint trial of the two claims looks cumbersome, the trial Court has been vested with ample power to order exclusion of the counter-claim. This power, of course, can be exercised strictly in accordance with the provisions of Rule 6C of Order VIII.

The Patna High Court in taking the contrary view in the case of Jaswant Singh (supra) appears to have been influenced more by the provisions found in Rule 19(1) of Order XX than the relevant provisions contained in Rule 6A of Order VIII. In paras 8 and 9 of the report the learned Judges in the first instance expressed themselves like this:

Now the question which has to be examined is as to whether there is any limitation on the nature of the counter-claim ? Rule 6 prescribes certain conditions before a plea of set-off can be entertained. These conditions are that (i) the suit must be one for recovery of money, (ii) the set-cff claimed by the Defendant must be in respect of an ascertained sum of money, (iii) such sum must be legally recoverable by the Defendant from the Plaintiff, (iv) both the parties must fill the same character as they fill in the Plaintiff�s suit, (v) such claim should not exceed the pecuniary limit of the jurisdiction of the court.

So far as the new Rule 6A is concerned, no such restrictions have been mentioned. It simply enables a Defendant to set up by way of a counter-claim �any right or claim in respect of a cause of action accruing to the Defendant against the plaintiff�. Can it be said that in view of Rule 6A a Defendant � is at liberty to raise any dispute in the suit of the Plaintiff irrespective of its nature.

Later after construing the expression �counter-claim� the learned Judges proceeded to make the following observations in para 10 of the report:

If the expression ��counter-claim� used in the aforesaid Rule 6A is given an interpretation to include any claim irrespective of its nature and as to whether it has any connection with the claim of the Plaintiff then in a suit filed on behalf of the Plaintiff for recovery of an amount advanced to the defendant, Defendant can make a prayer to declare his title and to pass a decree for recovery of possession in respect of any land or house against the Plaintiff of that suit, if any such dispute is pending between them, although it has no connection whatsoever with the claim for a money decree made on behalf of the plaintiff. In my view, the framers of the Code never purported to enlarge the scope of a suit filed on behalf of the Plaintiff, at the instance of the defendant. When they have used the expression �counter-claim� it means that the claim and the counterclaim are of the same nature, so that dispute relating to such claim and counter-claim may be decided in the same suit in order to avoid multiplicity of the suits.

Again towards the end, after quoting the provisions of Rule 6F of Order VIII and Rule 19(1) of Order XX, the learned Judges, however, proceeded to conclude thus:

In view of the amended Rule 19(1), which is a provision regarding preparation of the decree in respect of suits where a counter-claim has been allowed by the Court, it is clear that in the decree what amount is due to the Defendant has to be stated. In my opinion, the contention of the learned Counsel for the Petitioner that counter-claim under the rules aforesaid can be made only in such suits in which there is dispute in respect of money claim, has to be accepted.

With all respects to the learned Judges of the Patna High Court, I find it difficult to subscribe to the above view taken by them. The provisions of Rule 19(1) of Order XX could not be exploited to distort the plain language of Rule 6A of Order VIII. In case any conflict is apprehended in the two provisions, the same need to be resolved by placing a harmonious construction on such provisions without causing violence to the language of either of them. Rule 19(1) of Order XX as it, stood before the enactment of the Amending Act, was applicable only to suits for recovery of money where a plea of set-off had been allowed. After its amendment by the Amending Act, it has now been made applicable also to the suits where a counter-claim has been allowed. As earlier observed, a counter-claim may or may not pertain to money. The provisions of Rule 19(1) of Order XX would, therefore, in my view, be attracted only in such suits where the counter-claim allowed is a claim in money only. They shall have no application where the claim in suit and the counter-claim pertain to claims other than money claims. This, according to me, is the only way in which both the provisions, namely, Rule 6A of Order VIII and Rule 19(1) of Order XX can be construed harmoniously. Otherwise also when no restrictions or limitations are placed on the nature of the suit in which a counter-claim may be set up, it appears only logical to construe that no such restrictions were intended to be placed on the nature of the counter-claim either. My answer to question No. 2 posed above, therefore, is that the law places no bar or restriction on the nature of the claim which may be set up by way of a counterclaim provided there is a clear nexus between the claim made in the suit and the claim set up by way of counter-claim.

The third question formulated above would present no difficulty. Once a counter-claim within the contemplation of Rule 6A(1) has been validly set up, it has to be treated as a plaint and tried like a cross-suit in accordance with the relevant provisions of the Code unless its exclusion is ordered by the Court in exercise of the jurisdiction vested in it under Rule 6C. This jurisdiction under Rule 6C has, however, to be exercised judicially and only when an application to that effect is made to the Court by the Plaintiff before the settlement of issues. Where a counter-claim has been set up by the defendant, and no application under Rule 6C for its exclusion is made on behalf of the Plaintiff before the settlement of issues, the Court has no option but to proceed with the trial of the counter-claim like the trial of a regular suit.

The legal position that now obtains with respect to counter-claims with the enactment of Rules 6A to 6G of Order VIII CPC may be summed up thus:

(i) Rule 6A confers a statutory right on the Defendant to set up a counter-claim;

(ii) This right to set up a counter-claim is in addition to the right allowed to the Defendant under Rule 6 to plead a set-off;

(iii) Whereas the right to plead a set-off under Rule 6 is available only in suits for recovery of money, the right to set up a counter-claim is available in every suit irrespective of its nature;

(iv) A counter-claim within the contemplation of Rule 6A may be based on any right or claim irrespective of its nature provided the cause of action in respect thereof has accrued to the Defendant against the Plaintiff before the filing of defence or before the time limited for delivering his defence expired, the counter-claim does not exceed the pecuniary limits of jurisdiction of the Court and there is some nexus between the claim of the Plaintiff made in the suit and the claim set up by way of counter-claim;

(v) A counter-claim so set up is to be treated as a plaint; in the cross-suit and would be governed by the rules applicable to pleadings;

(vi) A counter-claim has to be tried and adjudicated upon like a cross-suit unless the Court orders its exclusion in exercise of its jurisdiction under Rule 6C;

(vii) Jurisdiction under Rule 6C to order exclusion of the counter-claim can be exercised by the Court only if an application to that effect is made to it by the Plaintiff before the settlement of issues; and

(viii) Unless the Court orders the exclusion of the counter-claim under Rule 6C, it has no option but to try� and adjudicate upon it as if it was a regular civil suit.

Now in the instant case on the facts as stated above, it cannot be said that there was no nexus or connection between the claim of the plaintiff-Respondent as set out in the suit and claim of the Defendants-petitioners as pleaded by way of counter-claim in their written statement. The counter-claim as set up by the Defendants-petitioners was thus very much maintainable in law. In passing the impugned order which operates-to direct deletion of the various pleas raised by the Defendants-petitioners in their written statement by way of counter-claim the itial Court exercised a jurisdiction not vested in it by law. This order, therefore, cannot be sustained and must be quashed.

For the foregoing reasons, I allow this revision petition, quash the impugned order and direct that the trial Court shall proceed with the trial of the suit as also of the counter-claim set up by the Defendants-petitioners on the issues already settled.

The parties through their counsel are directed to appear before the trial Court on 20th May, 1986.