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Delhi High Court

Rajender Singh vs Harpreet Kaur & Ors. on 20 August, 2014

Author: Manmohan Singh

Bench: Manmohan Singh

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Order delivered on: 20th August, 2014

+             I.A. No.13307/2012 in CS(OS) No.2164/2011

        RAJENDER SINGH                                        ..... Plaintiff
                    Through           Mr.L.B.Rai, Adv. with
                                      Ms.Nachiketa Goyal, Adv.

                          versus

        HARPREET KAUR & ORS                  .....Defendants
                    Through Ms.Ankita Prabhakar, Adv. with
                            Ms.Shweta Pokhriyal, Adv.

        CORAM:
        HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. By this order, I propose to decide application being I.A. No.13307/2012 under Section 144 read with Section 151 CPC filed by defendant No.1 seeking for restoration of the counter-claim.

2. The plaintiff filed the above said suit for partition, possession, permanent injunction and cancellation of sale deed dated 23rd March, 2011, relinquishment deed dated 7th February, 2001 and partition deed, against the defendants.

3. Upon service, defendant No.1 filed the written statement on 5th December, 2011 as well as a counter-claim against the plaintiff for granting a decree for a sum of Rs.30 lacs as damages along with cost. However, in the order dated 7th December, 2011, it was recorded that though the written statement along with counter-claim have stated to be filed but the same were not on record at that time.

Defendant No.1 was asked to contact the Registry in this regard. Thereafter, the plaintiff filed an application being I.A. No.20903/2011 under Order XXIII Rule 1 CPC seeking leave to defend to withdraw the suit. The said application was allowed and consequently, the suit was dismissed as withdrawn by order dated 27th April, 2012.

4. It is the admitted position that at the time of withdrawal of the suit, the Court did not pass any order about the counter-claim filed by the defendant No.1 along with the written statement on 5th December, 2011. Neither any order was passed nor any of the parties had pointed out to the Court in this regard at that time. It is also the admitted position that the counter-claim was not numbered when the said order was passed. Later on, the defendant No.1 filed the abovementioned application being I.A. No.13307/2012 under Section 144 read with Section 151 CPC for restoration of the counter-claim. Time was given to the parties to make their submissions in the pending application as to whether the counter-claim is now entertainable in the absence of its registration.

5. Learned counsel for the plaintiff has referred a decision of this Court in the case of Rahul Jain & Anr. vs. Pradeep Kumar & Ors., reported in 138 (2007) Delhi Law Times 329, para 26, wherein it was held that filing of the application with the proposed plaint does not amount to institution of the suit. It is only after permission and leave to institute the suit is granted that the same is registered as a suit. The learned Judge has also referred another decision reported in 30(1986) DLT 307 = AIR 1987 Delhi 74 entitled V. Bhagat v. Ms. Usha Bhagat.

6. Brief facts of the case are that the Late Sardar Jiwan Singh, the father of the plaintiff as well as defendants No.3 and 4 and father-in- law of defendant No.1 had purchased 50% portion in the plot bearing No.10, Raj Niwas Marg, Delhi (hereinafter referred to as the "suit property") by way of registered sale deed dated 14th August, 1970 from Gurdeep Singh. Later, Late Sardar Jiwan Singh bequeathed his 50% share holding in the suit property in favour of his four sons. A probate petition was filed by Sardar Rajinder Singh before the District Court and by virtue of grant of probate decree dated 2nd November,1998, the four sons of Late Sardar Jiwan Singh have become 25% owners of the suit property in the share of 50% held by Late Sardar Jiwan Singh.

7. It is the case of the plaintiff in the plaint that the defendant No.1 in collusion and connivance with defendants No.3 and 4 was illegally trying to sell the suit property to defendant No.2. The plaintiff thereafter, immediately got published public notice in two leading newspapers i.e. Indian Express and Jansatta dated 7th February, 2011 in which the plaintiff has informed the general public that no partition has taken place in the suit property and warned by way of the said public notice that whosoever purchase the suit property from anyone will be doing so at his/her own risk.

8. It is further stated that the plaintiff on further enquiry came to know that the defendant No.1, in collusion and connivance with the defendants No.3 and 4 executed a fake and fabricated deed of partition as well as relinquishment deed dated 7th February, 2001 only on 13th July, 2011. Thereafter, the plaintiff issued a legal notice to the CS (OS) No.2164/2011 Page 3 of 8 defendants on 17th August, 2010 and on 14th June, 2011. It is alleged in the plaint that the plaintiff came to know that defendant No.1 inspite of the publication of public notice and issuance of legal notice by the plaintiff has illegally executed a sale deed dated 23rd March, 2011 in favour of defendant No.2 on the basis of forged and fabricated partition deed as well as relinquishment deed.

9. Written Statement on behalf of the defendant No.1 has been filed denying the contents of the plaint and also contending that the plaintiff did not bring legal heirs in the array of the defendants; the plaintiff is disentitled to seek any discretionary relief as per Section 41 of Specific Relief Act; and the suit is liable to be rejected at the threshold with the compensatory costs in respect of false and vexatious suit as per Section 35-A of CPC. The plaintiff has moved the suit on false and frivolous grounds. Hence, the plaintiff is liable to be prosecuted under Section 340 Cr.PC.

10. The counter-claim on behalf of the defendant No.1 against the plaintiff has also been filed for granting a decree for a sum of Rs.30,00,000/- as damages caused to defendant No.1 and her two daughters for losing their peace of mind/reputation/dignity/self esteem at the hands of plaintiff as the repercussion of the false suit filed by him.

11. It is stated in the counter-claim that the plaintiff ceased to be one of the co-owner of the suit property by virtue of a registered relinquishment deed 7th February, 2001 executed by him and his sister named Smt.Surinder Kaur in favour of the husband of the defendant No.1, the defendant No.3, defendant No.4 along with one CS (OS) No.2164/2011 Page 4 of 8 of their another sibling named Sh.Trilochan Singh. By virtue of partition deed, the husband of the defendant No.1 named Sh.Paramjit Singh became the absolute owner of the suit property vide self allotted No.10/1, measuring area 626.59 sq. yards out of total area measuring 2932.5 sq. yards. It is stated that after the demise of the husband of the defendant No.1, Late Sardar Paramjit Singh, the defendant No.1 and her two daughters Smt.Simrat Kharbanda and Smt.Sukhmeet Kaur became the only survivors and by their mutual consent went into a sale deed with a company named as Kund Kund Reality Pvt. Ltd. It is further stated that the plaintiff issued legal notice against the defendants and instituted this present suit before this court in order to harass and defame defendant No.1.

12. As far as the decision in the case of Rahul Jain (supra) is concerned, the facts in the said case were different, as under Section 92 CPC, law provides that the suit can be filed either by the Advocate-General, or two or more persons having an interest with the leave of the Court. In the said case, the suit was merely filed in the Registry and there was no compliance under Section 92 of CPC. Therefore, it was rightly observed by the Court that the proposed suit does not amount to institution of the suit. However, the said facts are dissimilar to the present case.

13. Order VIII of CPC deals with the written statement, set-off and counter-claim. Order VIII Rule 6A CPC stipulates the scheme of the counter-claim. It reads as under:-

"6A. Counter-claim by defendant.- (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 CS (OS) No.2164/2011 Page 5 of 8 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. (2) Such counter-claim shall have the same effect as a cross 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-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."

14. It is apparent from the said provisions of Order VIII Rule 6A (iv) CPC that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. Under the provisions of Order VIII Rule 6D, it provides that in case, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. And under Rule 6F, where the 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 case may be, the Court may give judgment to the party entitled to such balance.

15. From the entire scheme of the counter-claim, it is evident that the counter-claim is akin like the suit and similar procedure has to be followed as to be followed in the suit. In the present case, there is no CS (OS) No.2164/2011 Page 6 of 8 dispute raised by the plaintiff that the counter-claim filed by defendant No.1 was not in time and in the prescribed manner or the plaintiff was not aware about the filing of the counter-claim when he withdrew his suit. Rather, the plaintiff has also filed the reply to the counter-claim on 17th April, 2012.

16. The only impediment in the present case is that the counter- claim was not registered and none of the parties had pointed out to the Court when the suit was withdrawn and no order was passed for further proceedings in the counter-claim. In fact, it is the mistake of the counsel for the defendant No.1 and due to oversight the Registry did not register the counter-claim filed by defendant No.1. Therefore, this Court is of the view that the counter-claim cannot be rejected as argued by the learned counsel for the plaintiff who states that the application filed by defendant No.1 is not maintainable. Even if the application filed by defendant No.1 is not maintainable, still the Court is empowered to pass the order for continuation of the proceedings in the counter-claim filed by the parties.

17. Having considered the entire facts and circumstances of the case, I am of the view that the counter-claim in the present case is to be proceeded further. The application of defendant No.1 is accordingly allowed.

18. The Registry to register the counter-claim. The reply filed by the plaintiff to the counter-claim is already on the record. The counter- claimant/defendant No.1 is granted four weeks time to file the replication, if any.

19. The parties to appear before the Joint Registrar on 24th November, 2014 for admission/denial of the documents. Thereafter, the matter be listed before Court on 8th January, 2015 for framing of issues in the counter-claim.

(MANMOHAN SINGH) JUDGE AUGUST 20, 2014 CS (OS) No.2164/2011 Page 8 of 8