Calcutta High Court
Seema Dasgupta vs Gopal Banerjee on 29 September, 2003
Equivalent citations: 2004(1)CHN6
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT Subhro Kamal Mukherjee, J.
1. This is to consider an application under Article 227 of the Constitution of India against the judgment and order dated January 17, 2003 passed by the learned Additional District Judge, Ninth Court at Alipore, District: South 24-Parganas in Civil Revision Case No. 71 of 2001 affirming order No. 57 dated December 14, 2000 passed by the learned Civil Judge (Junior Division). Third Court at Alipore, District: South 24-Parganas in Title Suit No. 151 of 1992.
2. The plaintiff/petitioner instituted Title Suit No. 151 of 1992 in the Court of the learned Civil Judge (Junior Division), Third Court at Alipore, inter alia, for permanent injunction. It has been alleged that the said plaintiff has been a tenant in respect of one garage at northern portion of premises No. 64, Raja Basanta Roy Road, Calcutta-29 at a monthly rental of Rs. 200/- (Rupees two hundred) only according to English calendar. The plaintiff has been running a beauty parlour. The landlord arranged for water supply from the main reservoir on the roof of the first floor of the premises by placing a 'Patton tank' through a pipeline and water has been provided to the tenanted premises from the said tank. The plaintiff paid Rs. 20,000/- (Rupees twenty thousand) only for keeping the said tank on the roof. It has, further, been alleged that the landlord has been making obstruction as to the supply of water to the tenanted premises and has been interfering with the supply of water from the said tank. The plaintiff, therefore, prayed for a decree for permanent injunction to restrain the landlord and his men and agents from making any obstruction as to the supply of water by removing the stopcock and from interfering with the supply of water from the said tank and from removing and/or shifting the said tank from the roof.
3. The defendant/opposite party entered appearance in the said suit and is contesting the said suit by filing a written statement. The said written statement was filed on July 22, 1994.
4. On August 17, 2000 the defendant filed an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure praying for leave to amend the written statement to insert his counter-claim. The defendant, inter alia, prayed for a decree for eviction and recovery of khas possession of the tenanted premises and for recovery of damages and mesne profits. The defendant states that the tenanted premises is required by the defendant for his own use and occupation for keeping his own car.
5. The plaintiff contested the said application by filing a written objection.
6. By order No. 57 dated December 14, 2000 the learned Trial Judge allowed the said application for amendment of the written statement on contest without cost.
7. The plaintiff being aggrieved by and dissatisfied with the said order No. 57 dated December 14, 2000 passed in the said Title Suit No. 151 of 1992 filed an application under Section 115A of the Code of Civil Procedure in the Court of the learned District Judge at Alipore, District: South 24-Parganas. The said revisional application was registered as Civil Revision Case No. 71 of 2001. Eventually, the revisional application was transferred to the Court of the learned Additional District Judge, Ninth Court at Alipore, District; South 24-Parganas and by judgment and order dated January 17, 2003 the learned Additional District Judge rejected the revisional application on contest without any order as to costs.
8. Being aggrieved the plaintiff has come up with this application under Article 227 of the Constitution of India.
9. The provisions of Rule 6A of Order 8 of the Code of Civil Procedure are inserted by the Code of Civil Procedure (Amendment) Act, 1976. The object of enacting the said Rule 6A is to reduce multiplicity of proceedings by providing that causes of action and cross-claims can be clubbed together and disposed of by a common judgment.
10. Prior to insertion of the said Rule there was no express provision in the Code of Civil Procedure for filing of a counter-claim except the rule making power in Section 128(2)(c) of the Code of Civil Procedure. The Law Commission in its 27th report observed as under:
"64. There is at present no express provision for the filing of a counter-claim except the rule-making power in Section 128(2)(c). The present position has been summed up by Mulla thus :
Though the Code does not provide for counter-claims, there is nothing to prevent a Court from treating the counter-claim as a plaint in a cross-suit and hearing the two suits together, provided the requisite court-fee on the counter-claim has been paid.' High Courts which exercise original jurisdiction have made rules which provide for counter-claims (e. g. Bombay High Court Original Side Rules, 1957, Rule 137 et seq.). We are of the opinion that in order to avoid multiplicity of proceedings and to dispel doubts that counter-claim cannot be entertained, an express provision should be inserted in the Code for this purpose."
11. Supreme Court of India in the case of Mahendra Kumar and Anr. v. State of Madhya Pradesh and Ors., , observed that Rule 6A did not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. It has been laid down under Rule 6A that a counter-claim could be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim has been in the nature of a claim for damages or not. Therefore, the counterclaim filed by the defendant after filing of his written statement could not be said to be not maintainable.
12. In Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors., , it has been observed that in a suit for injunction, counter-claim for injunction in respect of the same or a different property has been maintainable. A defendant could claim any right by way of a counterclaim in respect of any cause of action that has accrued to him even though it has been independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. In Sub-rule (1) of Rule 6A, the language has been 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 would be the subject-matter of an independent suit. Thereby, it has been no longer confined to money claim or to cause of action on the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. 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 counterclaim arose need not necessarily arose from or have any nexus with the cause of action of the plaintiff.
13. In the case in hand, the plaintiff-tenant instituted a suit for permanent injunction to restrain the defendant-landlord from interfering with the free supply of water in the tenanted premises. The defendant in such a suit filed a counter-claim for a decree for recovery of possession and for damages against the said plaintiff. The counter-claim made by the defendant in the suit for permanent injunction by setting up the claim of recovery of possession and mesne profits is maintainable.
14. In my view, the Courts below committed no error of jurisdiction in allowing the application for amendment and granting leave to the defendant to insert such counter claim in the written statement.
15. Accordingly, the application under Article 227 of the Constitution of India is rejected without, however, any order as to costs.
16. The learned Trial Judge is directed to expedite the hearing of the suit as far as practicable and, in any event, he must dispose of the suit within six months from the date of communication of this order to him. I authorise the learned Trial Judge, in order to secure compliance of this direction, to refuse any unnecessary prayer for adjournment by either of the parties.
17. Xerox certified copy of this order, if applied for, is to be supplied expeditiously.