Patna High Court
Jashwant Singh vs Smt. Darshan Kaur And Ors. on 27 January, 1983
Equivalent citations: AIR1983PAT132
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This Civil Revision application has been filed on behalf of the plaintiff. What is the scope of Rule 6A of Order 8 of the Code of Civil Procedure, which was introduced by the Civil Procedure Code (Amandment) Act, 1976, is the issue involved in this application,
2. The petitioner had filed the title suit in question for a declaration that he has a right to remain over the suit property as a licensee for a period of five years commencing from 29-9-1980 and for a decree for permanent injunction restraining the defendant-opposite party from interfering with the peaceful possession of the petitioner. According to the petitioner, he was a month to month tenant of the suit property, later; there was some dispute and ultimately it was agreed that the petitioner shall continue in possession of the same for a period of five years after which he shall vacate the premises in question. According to the petitioner, during the continuance of the said period, the opposite party interfered with the possession of the petitioner which necessitated the filing of the suit in question.
3. The defendant-opposite party appeared in the said suit and filed their written statement disputing any agreement as aforesaid. According to them, the petitioner was a trespasser, and, as such, liable to be evicted. A prayer was made to treat the said written statement as a counter-claim, within the meaning of Rule 6-A of Order 8 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). Ad valorem court fee was also paid by the defendant-opposite party for decree of their counter-claim.
4. The petitioner objected to the said prayer of the opposite party that the written statement should be entertained as a counter-claim for eviction of the petitioner saying that any such claim was not maintainable in the suit filed on behalf of the petitioner.
5. Learned Munsif, however, by the Impugned order has held that after the introduction of Rule 6-A in Order 8 of the Code, the opposite party were entitled to make a counter-claim against the petitioner and to pray for a decree for eviction of the petitioner in the suit which had been filed on behalf of the petitioner.
6. Rule 6 of Order 8 of the Code enables a defendant to plead set off, whenever a suit for recovery of money has been filed against such defendant, In view of Sub-rule (2) of Rule 6 any such written statement in which a set-off has been pleaded, shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of the original claim and of the set-off. By amendment Rules 6-A to 6-G have been introduced in Order 8. The relevant portion of Rule 6-A (1) is as follows:
"6-A (1). 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 delivered 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 the jurisdiction of the Court."
Sub-rules (2) to (4) of Rule 6-A contain provisions saying that such counterclaim shall have the same effect as a cross-suit, and Court can pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. In such cases the plaintiff is at liberty to file a written statement in answer to the counter-claim.
7. There cannot be any dispute that by introduction of new Rule 6-A, the right of a defendant to make a counterclaim against the plaintiff in the suit filed on behalf of the plaintiff has been enlarged and it purports to cover cases which could not have been covered by the original Rule 6. The expressions 'set-off or 'counter-claim' have not been defined in the Code. However, the expression 'set-off' according to its original and strict sense is a plea in defence, pure and simple, which by adjustment would wipe out Or reduce the plaintiff's claim. In respect of set-off it has been pointed out that essence of such a claim is that there must be some connection between the plaintiff's claim for a debt and defendant's claim to set-off, which will make it inequitable to drive the defendant to a separate suit, In this process on many occasions courts were faced with a situation when they could have set-off only a part of claim made on behalf of the defendants towards the claim made on behalf of the plaintiff, but they had no power in that very suit to pass a decree for balance of the amount claimed by the defendant against the plaintiff of that suit. To remove this anomaly perhaps, this Rule 6-A was introduced which says that a defendant in a suit, in addition to his right of pleading a set-off under Rule 6, may set up counter-claim against the plaintiff. This counter-claim can be examined in the same suit and now courts are competent to pass a decree in favour of the defendant against the plaintiff.
8. Now the question which has to be examined is as to whether there is any limitation on the nature of the counterclaim? 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-off 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.
9. So far as the new Rule 6-A is concerned, no such restrictions have been mentioned. It simply enables a defendant to set up by way of a counterclaim "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 or Rule 6-A a defendant is at liberty to raise any dispute in the suit of the plaintiff irrespective of its nature?
10. The expression 'counter-claim' has often been used in context with 'set-off. In Stroud's Judicial Dictionary it has been mentioned that "set-off and counter-claim confer definite and independent remedies upon the defendant against the plaintiff". The expression 'counter-claim' had not been used in Rule 6, but in several judicial pronouncements the said expression has been used along with the expression 'set-off'. In the cases of Sheobachan Pandey v. Madho Saran Choubey, (AIR 1952 Patna 73) a Bench of this Court while construing the scope of Order 8, Rule 6 observed as follows (at p. 75), "A cross-claim may be set up as a shield Or as a sword. When it is set up as a shield it is a defensive weapon and may be pleaded by the defendant to reduce the liability against him even to the full extent of the plaintiffs claim. A counter-claim in the shape of a defensive measure is what is technically known as a set-off."
If the expression 'counter-claim' used in the aforesaid Rule 6-A 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 counter-claim 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. Perhaps, keeping this aspect of the matter in view, by amendment Rule 6-C has also been introduced which is as follows :
"6-C. Exclusion of counter-claim: Where a defendant sets up a counterclaim and the plaintiff contends that the claim thereby raised! ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court, may, on the hearing of such application make such order as it thinks fit."
11. Learned counsel appearing for the petitioner has also drawn our attention to new Rule 6-F of Order 8 and the amended Rule 19 of Order 20 in support of his contention that the right of the defendant to raise a counter-claim has limited by the Code only in cases where the dispute is in respect of a money claim. Rule 6-F of Order 8 is as follows:
"6-F. Relief to defendant where counter-claim succeeds :-- Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the ease may be, the Court may give judgment to the party entitled to such balance."
From Rule 6-F it is apparent that counter-claim must relate to a monetary claim because Court has been vested with power to pass a judgment even in respect of any balance found due to the defendant. Rule 19 (1) of Order 20 is as follows:
"19 (1). Where the defendant has been allowed set-off (or counter-claim) against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to he due to either party."
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 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 mony claim, has to be accepted. In the instant case the suit which was filed on behalf of the plaintiff was for declaration that he was the licensee of the premises in question and has a right to remain in possession thereof for the period mentioned in the plaint. In my view it was not open to the defendant to make a prayer for eviction of the plaintiff by way of a counter-claim. As such, the order amounts to an exercise of jurisdiction illegally and with material irregularity and calls for an interference by this Court. Accordingly, this application is allowed and the impugned order is set aside. However, it is made clear that it will be open to the defendant-opposite party to file a fresh suit, if they are so advised. In the circumstances of the case, there will be no order as to costs.
12. Before I part with the judgment I must observe that Mr. Sukumar Sinha, who has appeared for the plaintiff-petitioner, has presented the case on behalf of the petitioner with ability.
Ashwini Kumar Sinha, J.
13. I agree.