Punjab-Haryana High Court
Maninder Singh And Others vs Manjit Kaur And Others on 4 December, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:163858
[146] IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-177-2024
2024 (O&M)
Date of Decision : 04.12.2024
Maninder Singh and others ...Petitioners
versus
Manjit Kaur and others ....Respondents
Coram : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Prateek Sodhi, Advocate
for the petitioners.
Mr. Kunal Vinayak, Advocate
for respondent Nos.1 to 3.
****
PANKAJ JAIN,
JAIN J. (ORAL)
[1] Challenge is to order dated 14.11.2023 passed by the learned Civil Judge (Junior Division), Amritsar, whereby, application filed by the co-defendants defendants under Order 7 Rule 11 CPC qua the counter claim filed by defendant Nos.4 to 6 stands dismissed.
[2] Plaintiff tiff filed a suit, seeking decree of declaration to the effect that after death of Smt. Inderjit Kaur widow of late Sardar Gurcharan Singh, Singh plaintiff aintiff has ha become co-owner owner in possession to the suit land. Separate written statements were filed by defendant Nos.4 to 6 to set-off.. Defendant Nos.1 to 3 & 7 filed separate written statement. Defendant Nos.4 to 6 contested the suit separately. Defendant Nos.1 to 3 in their written statement stateme propounded Will dated 11.03.2014 of one Inderjit Kaur. The ppleading leading reads 1 of 9 ::: Downloaded on - 21-12-2024 06:08:44 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -2- as under:--
"7. That the para no.7 of the plaint is wrong. It is denied that Inderjit Kaur has died intestate without executing any kind of Will as alleged. It is denied that Inderjit Kaur has never executed any kind of Will and she has died intestate as alleged in this ppara ara of the plaint. As already submitted above, the fact regarding the execution of the Will is well within the knowledge of the plaintiff and other defendants and as such question of not executing any Will does not arise. "
[3] Defendant Nos.4 to 6 along with the written statement filed counter-claim claim contested the claim made ma e by Defendant Nos.1 1 to 3. In the counter-claim claim preferred by Defendant Nos.
Nos.4 to 6, Defendant Nos.1 1 to 3 and 7 filed present application under Order 7 Rule 11 CPC CPC, seeking rejection on of the counter-claim.
counter claim. It was claimed that counter claim preferred by Defendant Nos.4 4 to 6 was not maintainable against co co-defendants i.e. Defendant Nos.1 Nos.
to 3 and 7 and further that the counter claim was with respect to the property, which was not the subject-matter matter of the suit. The aforesaid application filed by the Defendant Nos.1 Nos.1 to 3 & 7 stand rejected by the learned Trial Court, holding that in order to reach at just proper conclusion and to decide the lis between the parties, the Court is required required to consider the rival claim raised by counter er-claimants/defendant Nos.44 to 6.
[4] Counsel for the petitioners/defendant /defendant Nos.1 to 33,, while assailing the impugned order has raised two-fold two fold submissions. He submits that in terms of provision as contained under Order 88-A,, it is only against the claim 2 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -3- of plaintiff that the defendants can maintain the counter cl claim aim and further submits that it should be on the same execution i.e. qua the same subject-
subject matter for which the plaint has been filed filed. In order to hammerforth his contentions he relied upon 'Rohit Singh and others versus State of Bihar contentions, (now State of Jharkhand) Jharkhand) and others', 2007 AIR (Supreme Court) 10, 'Satyender and others versus Saroj and others', 2022 AIR (Supreme Court) 4732, 'A. Mohamed Sulaiman and another versus A. Ameena Beevi (Deceased) and others', 2013(11) RCR (Criminal) 187, 'Soma Devi versus Kashmiri Kashmiri Lal and another', 2017(4) Law Herald 3362 and 'Ashok Ashok Kumar Sharma versus Rakesh Kumar Sharma and others', 2024(3) Law Herald 2334.
2334[5] Per contra, Mr.Vinayak, counsel for respondent Nos.1 to 3/defendant /defendant Nos.4 to 6 submits that where there is a collusion between the plaintiff and the co-defendants, co defendants, defendants can maintain the counter claim.
He further submits that the counter claim raised by the respondents is qua the properties inherited by the same ancestral and tthus, it is in the interest of parties that whole of the lis be decided together and the multiplicity of the lis be avoided. On being asked as to whether defendant Nos.4 4 to 6 can maintain separate counter-claim, counter claim, counsel for respondent Nos.1 to 3 submits that at since the scope of this revision is only with respect to maintainability of the counter claim, the query raised by the Court is beyond that.
3 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -4- [6] I have heard counsel for the parties and have carefully gone through the records recor of the case.
[7] Order VIII Rule 6 CPC provided for right to the defendants to claim set--off in his written statement.. Based upon the said right to claim set-
set off, Rule 6-A 6 to 6-G G were incorporated by way of 1976 amendment. The same reads as under:-
under:
"1 [6A. Counter-claim claim by defendant (1) A defendant in a suit defendant.--(1) may, in addition to his right of pleading a set set-off off under rule 6, set up, by way of counter-claim 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 delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim claim is in the nature of a clai claim m for damages or not:
Provided that such counter counter-claim claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim claim shall have the same effect as a cross-suit suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter counter-claim claim of the defendant within such period as may be fixed by the court.
(4) The counter-claim claim shall be treated as a plaint and governed by the rules applicable to plaints.
6B. Counter-claim stated.-- Where any defendant claim to be stated seeks to rely upon any ground as supporting a right of counter counter--
claim, he shall, in his written statement, state spec specifically ifically that he does so by way of counter-claim.
claim.
4 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -5- 6C. Exclusion of counter Where a defendant sets counter-claim.--Where up a counter-claim claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter counter--
claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, claim, apply to the Court for an order that such counter counter-claim claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.
suit.-- If in any case in 6D. Effect of discontinuance of suit which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter counter-claim claim may nevertheless be proceeded with.
6E. Default of plaintiff to reply to counter If the counter-claim.--If plaintiff makes default in putting in a reply to th the counter-claim claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter counter-claim claim made against him, or make such order in relation to the counter counter-claim claim as it thinks fit.
6F. Relief to defendant where counter counter-claim succeeds.--
--
Where in any suit a set-off off or counterclaim is established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be. the Court may give judgment to the party entitled to ssuch balance. 6G. Rules relating to written statement to apply The rules apply.--The relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter counter-claim.]"
[8] The provision came up for consideration before the Supreme Supre Court in the case of 'Rohit 'Rohit Singh and others versus State of Bihar (now others reported as 2007 AIR (Supreme Court) State of Jharkhand) and others',
5 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -6- 10, wherein, the Supreme Court reiterated law laid down in 'Ramesh Ramesh Chand Ardawatiya versus Anil Panjwani Panjwani', reported as 2003(7) SCC 350 and held as under:-
under:
"11. Learned counsel for the appellants contended that a counter-
counter claim was maintainable even if the cause of action put forward by the defendants in the suit did not arise out of the cause of action put in suit by the Plaintiff and that under such circumstances circumstances,, the trial court and the first appellate court rightly considered the claim put forward by the appellants as a counter counter- claim and were justified in adjudicating it in the manner in which it was done. It was also contended that Order 8 Rule 6A of the Code did not preclude the filing of a counter-claim claim by one defendant against a co co-defendant defendant even though no relief was claimed as against the plaintiff. It was also contended that in the absence of an answer to the counter counter-claim claim being filed by defendants 1 and 2 or defendants 18 to 20, the trial court was justified in proceeding on the terms of Order 8 Rule 6E of the Code and in allowing the counter counter-claim claim on the basis that there was no resistance or answer to the claim made by way of amendment in the written statement.
ement. It is therefore submitted that the High Court was not justified in interfering with the decision of the first appellate court. On the scope and content of Order 8 Rule 6A of the Code, he referred to various decisions including those of this court, culminating in the one in Ramesh Chand Ardawariyab v. Anil Panjwani, 2003(2) RCR (Civil) 828 (SC): (2003(7) SCC 350) and contended that the conclusion answered by the High Court was not warranted. "
[9] Three Judges Bench of the Supreme Court in the case of 'Satyender Satyender and others versus Saroj and others others' 2022 AIR (SC) 4732 6 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -7- again considered its scope of Order 8 Rule 66-A A of the Code of Civil Procedure and concluded as under:-
under:
"16. The other finding of Second Appellate Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is, however, correct and is based on right interpretation of Order VIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear that they had never raised any claim on Killa a No. 6//18 or Killa No. 23. The defendants in their written statement while denying the rights of the plaintiffs on the land of which particulars had been given by the plaintiffs, quite ingeniously inserted the two Killa Nos.6//18 and 23, setting a counte counter-claim claim on these plots. The Trial Court and the First Appellate Court while dismissing the plaintiffs' suit had allowed this claim for without assigning any reasons. In fact, this counter claim which was raised by the defendant is barred under Order VIII, Rule 6A of the CPC. Order VIII, Rule 6A reads as under:
under:-
[6A. Counter-claim claim by defendant.
defendant.-(1) (1) A defendant in a suit may, in addition to his right of pleading a set set-off off under rule 6, set up, by way of counter-claim claim against the claim of the plaintiff, any rright ight 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 delivered his defence or before the time limited for delivering his defence-has has eexpired, whether such counter-claim claim is in the nature of a claim for damages or not.
Provided that such counter counter-claim claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim claim shall have the same effect as a cross cross-suit so as to enable the Court to pronounce a final judgement in the same suit, both on the original claim and on the counter counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter- claim of the defendant within such period as may be fixed by the court.
7 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -8- (4) The counter-claim claim shall be treated as a plaint and governed by the rules applicable to plaints..
A counter claim can be set up only "against the claim of the plaintiffs". Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs. It is true that a counter claim can be made by the defendant, even on a separate or independent cause of action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors. (1996) 4 SCC
699).
The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the presen presentt case the counter claim was not against the plaintiffs. Moreover, as the plaintiffs had not claimed any right over the property and the Killa No s. 6//8 and 23 are not even a part of the suit property described in the plaint by the plaintiffs. Despite the he same, such a claim has been allowed against the plaintiffs. In fact, we do not find on record any reply submitted by the plaintiffs against the counter claim. To be fair, such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC. Suffice it to state here that the counter claim set up by the defendants has been rightly rejected by the High Court."
[10] In view of the above, there cannot be any dispute with the proposition raised by counsel for respondent Nos.1 to 3 that where counter-
counter claim is being raised against the claim of the plaintiff even if co co-defendant defendant is 8 of 9 ::: Downloaded on - 21-12-2024 06:08:45 ::: Neutral Citation No:=2024:PHHC:163858 CR-177-2024 2024 -9- effected thereby, the counter claim would be maintainable. However, the same has to be only with respect to the claim raised by the plaintiff.
Admittedly, in the present case, the counter claim raised by defendant efendant Nos.4 Nos.
to 6 is not relatable to the claim raised by the plaintiff in his plaint and is beyond that.
that. Thus, the counter claim raised by defendant Nos.4 4 to 6 would be beyond the scope of Order 8 Rule 66-A CPC and would be hit by the interpretation given by the Supreme Court in the case of ''Satyender Satyender and others (supra) and would be thus not maintainable.
[11] In view of the above, this Court finds that tthe he learned Trial Court erred in dismissing the application filed by the petitioner petitioners-defendant efendants Nos.1 1 to 3. Resultantly, Resu tantly, the impugned order is hereby set aside.. Counter claim filed by defendant Nos.44 to 6 is held to be barred by law.
[12] Revision petition stands disposed off.
[13] All miscellaneous application(s), if any, also stands disposed off.
(PANKAJ JAIN) JUDGE 04.12.2024 'R. Sharma' Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No 9 of 9 ::: Downloaded on - 21-12-2024 06:08:45 :::