Tata Engineering and Locomotive Company Limited vs P.S. Jain Motors and Others

M.S. Liberhan, J.—This revision arises out of an order allowing the respondents defendants to put in the counter claim in the suit brought by the petitioner.

Succinctly, the relevant fasts in order to dispose of this revision petition may be noticed as under : -

The plaintiffs petitioners (hereinafter referred to as (be petitioners) brought a suit for recovery of certain amount on account of sale of spare parts of vehicles. trucks and the money due on the basis of hue purchase agreement against the respondent-defendants (hereinafter referred to as the defendants).

The defendants in terms of Order VIII Rule 6-c of the Civil Procedure Code, preferred a counter claim with written statement, demanding rendering of accounts as agent, from the plaintiffs as the principal and payment of commission to them. This Court vide its order dated November 11, 1988 in civil revision No. 1500 of 1987 d reacted the trial Court to take a decision on the application of the petitioner under Order VIII Rule 6C, C. P. C, after hearing the parties. It was further observed that in ease the Court comes to the conclusion that the counter claim is to be ex eluded from the instant suit brought by the petitioner, the same shall be treated as separate suit and used accordingly.

The learned trial Court without determining whether the sine qua non as envisaged by Order VIII Rule 6-C of the Code of Civil Procedure, are satisfied for allowing the defendants to put in, counterclaim; in the suit, allowed the counter claim to be put in, subject to certain terms and conditions, merely observing that the provisions constituted unity in diversity.

The learned counsel for the petitioners urged that the trial Court has failed to exercise its jurisdiction vested in it by passing a non speaking order. Nothing has been pointed out in the order whether the faces and circumstances, stated in the plaint as well as in the counter claim fall within the parametre envisaged by the case law and whether the statutory provisions have been satisfied for the giant of such permission. No grounds have been pointed out for allowing she application under Order V1I1 Rule 6-C, C. P C Resultantly the trial Court has failed to comply with the order dated November 11, 1988, passed by this Court.

There is no dispute nor any has been raised that the impugned order is not a speaking order. No reason have been pointed our for dealing tae prayer of the plaintiffs viz not to allow the ''counter claim of tins defendants to be decided alongwith the suit brought by the plaintiffs. The trial Court has failed to advert to the facts and circumstances of this case and determine the question raised.

In view of the observations made above, the impugned order is set aside and this revision petition is allowed The trial Court is discussed to decide a fresh the application of the pensioners Under Order (sic) Rule 6-C, C. P. C. by passing a speaking order and after hearing the parties The parties are directed to appear before the trial Court on 29-11-1990.