Ved Parkash vs Om Dutt

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated February 5, 1983, whereby the application made under Order VIII, Rule 6-C of the Code of Civil Procedure, (hereinafter called the Code), for excluding the counter claim made by the Defendant, was dismissed.

The Plaintiff-petitioner filed the suit for the grant of the permanent injunction restraining the Defendant from making any construction on the joint court-yard, etc. In the written statement filed on behalf of the Defendants counter claim was made which was objected to by the Plaintiff by making the application under Order VIII Rule 6-C of the Code. The trial Court found that as the claim and the counter claim had been made with regard to the same property, the same could be disposed of in the very suit conveniently and that no new suit need be filed by the Defendant in that behalf. Consequently, the said application was dismissed. Dissatisfied with the same, the Plaintiff has come up in revision to this Court.

A preliminary objection has been raised on behalf of the defendent that no revision petition is competent against the impugned order as there is no failure of justice in the instant case even if the said order is allowed to stand. It was contended on his behalf that the written statement filed by him in the nature of the counter claim be treated as a plaint in the suit and, thus, the same be decided along with the suit filed by the Plaintiff. On the other hand, the Learned Counsel for the Petitioner vehemently contended that no counter claim is contemplated in a suit other than a money suit and, therefore, the counter claim filed by the Defendant was not maintainable The Learned Counsel referred to the provisions of Order VIII Rules 6-A, 6-C and 6-F as well as Order XX Rule 19 of the Code. Reference was also made to Jashwant Singh Vs. Smt. Darshan Kaur and Others, , wherein it was held that the right to file a counter claim was limited to the cases involving money claims and that the Defendant was not entitled to raise any right or claim by way of counter claim. However, the Learned Counsel for the Defendant-respondent relied upon Raman Sukumaran Vs. Velayudhan Madhavan, wherein it was held that Rule 6A of Order VIII of the Code contemplates counter claim in any suit The scheme of the new rule is to permit the Defendant to set up counter claims which arise between the parties and which are cognizable by the Court where the suit is pending. In the above-said case, reliance was placed by the Kerala High Court on Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others, . The Learned Counsel also relied upon Ghulam v. Ghulam Ahmad AIR 1956 J.&K. 38.

After hearing the Learned Counsel for the parties, I am of the considered opinion that in the present case, it is not necessary to go into the matter as to whether a counter claim in a suit other than a money suit is maintainable or not in view of the statement made by the Learned Counsel for the Defendant-respondent that the counter claim be treated at a plaint. No meaningful argument could be raised on behalf of the Plaintiff to contest this proposition.

In Laxmidas''s case (supra), it has been observed by the Supreme Court as follows:

The question has therefore to be considered on principle as to whether there is anything in law-statutory or otherwise which precludes a Court from treating a counter claim as a plaint in a cross suit. We are unable to see any. No doubt, the CPC prescribes the contents of a plaint and it might very well be that a counter claim which is to be treated as a cross-suit might not conform to all these requirements, but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a cross-suit is made part of a written statement either by being made an annexure to it or as part and parcel thereof, though described as a counter claim, there being no legal objection to the Court treating the same as a plaint and granting such relief to the Defendant as would have been open if the pleading had taken the form of a plaint. Mr. Desai had to concede that in such a case the Court was not prevented from separating the written statement proper from what was described as a counter claim and treating the latter as a cross-suit. If so much is conceded it would then become merely a matter of degree as to whether the counter claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought and if it did it would seem proper to hold that it would be open to a Court to convert or treat the counter claim as a plaint in a cross-suit. To hold otherwise would be to erect what in substance is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in Older VIII Rule 6 or in any other provisions of the Code which laid an embargo on a Court adopting such a course.

In this view of the matter, this revision petition fails and is dismissed with no order as to costs. The parties have been directed to appear in the trial Court on 4-1-1984.