Syed Mohamed and another vs Nabisath Beevi and another

Plaintiffs in O.S.No.60 of 1997 on the file of the Additional District Munsif, Padmanabhapuram, are the revision petitioners.

Plaintiffs filed a suit for a decree of permanent prohibitory injunction restraining the defendants and their men from evicting the plaintiffs from the

scheduled property and for other reliefs. It is their case that from the year 1980, they are residing in the scheduled property as absolute owners.

First defendant is the sister of the 2nd plaintiff and, the 2nd defendant is her husband and they have no manner of right or title over the scheduled

properly. Whileso on 8.3.1997, the defendants tried to evict the plaintiff from the scheduled property by force after making some false claim.

Plaintiffs apprehend that the defendants may forcibly evict them and they have filed a suit for the reliefs stated above.

In the written statement, they denied the right of the plaintiff, but also filed a counter-claim that on the. basis of their title, they are entitled to

recover the property from the plaintiffs. According to them, 2nd plaintiff''s father had gifted the plaint schedule property in favour of the 1st

defendant by a registered gift deed dated 2.2.1987 and also surrendered possession of the same. According to the defendants, the plaintiffs are in

occupation of the building only under the permission given by the 1st defendant and they are entitled to recover the property with past and future

mesne profits.

For the counter claim, plaintiffs filed a written statement and also moved an application to exclude the counter-claim from the suit. According to

them, without the relief of declaration, the plaintiffs are not entitled to seek for recovery and the counter claim is not maintainable. It is also their

case that in a suit for Injunctions counter-claim is not maintainable for recovery of property and the defendants have also not complied with Order

8, Rule 6-A of the Code of Civil Procedure.

After hearing both sides, lower court dismissed the application filed by the plaintiff to exclude the counter-claim.

The same is challenged in this revision.

Since caveat was entered by the respondents, I heard the revision itself at the time of admission.

I do not find any merit in the submission of the counsel in view of the settled legal position reported in Gurbachan Singh Vs. Bhag Singh and

others, . In paragraph 2 and 3 of the judgment, their Lordships held thus:

The contention raised in the courts below was that in a suit for perpetual injunction, the res-pondents could not lay any counter-claim for

possession. Order 8, Rule 6 (A) (1) of the CPC, 1908 as amended in 1976 read thus:

A defendant in a suit may in addition to his right of pleading 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 but

before the defendant has deliver 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:

Provided that such counter-claim shall not exceed the pecuniary limits of jurisdiction of the Court.

It is true that Rule 6-A (a) was introduced by the Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money

claim, counter-claim or set-off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the

proceedings, right to the defendants to raise the plea of set-off in addition to a counter-claim in Rule 6 in the same suit irrespective of the fact

whether the cause of action for counter-claim or set-off had accrued to the defendant either before or after the filing of the suit. 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 damages or not.

Further limitation was that the counter-claim should not exceed the pecuniary limits of the jurisdiction of the Court. In other words by laying the

counter- claim, pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by

accepting the counter-claim beyond its pecuniary jurisdiction. Thus considered, we hold that in a suit for injunction, the counter-claim for

possession also could be entertained, by operation of Order 8, Rule 6 (A) (1) of the CPC.

It is clear from the above decision that in a suit for injunction, a counter claim for possession also could be entertained . A similar question came

up for consideration in a decision reported in Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, , wherein their

Lordships considered the necessity, circumstance and the purpose for enabling the plaintiff to file a counter-claim. In that case, their Lordships

held, the language of relevant rules is so couched with words of wide width as to enable the parties to bring his own independent cause of action in

respect of any claim that will be subject matter of independent suit. Their Lordships further held that, it need not relate to or be connected to

original cause of action or matter pleaded by plaintiff and In paragraph 5 of the judgment, their Lordships declared the law thus:

... The words any right or claim in respect of a cause of action accruing with the defendant"" would show that the cause of action from which the

counter-claim arises 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."" (Italics supplied)

In view of the settled legal position, I do not think that any ground is made out for interference u/s 115, C.P.C. The lower court rejected the

application rightly following the well settled legal principles.

In the result, the C.R.P. is without merit and consequently, the same is dismissed. No costs. C.M.P., No. 954 of 2000 is also dismissed.