Kerala High Court
Pathrose Samual And Anr. vs Karumban Parameswaran on 10 June, 1987
Equivalent citations: AIR1988KER163, AIR 1988 KERALA 163, (1987) 2 KER LT 44 (1987) 5 REPORTS 581, (1987) 5 REPORTS 581
ORDER S. Padmanabhan, J.
1. In execution of a money decree against two defendants an item of immovable property was sold and purchased by a stranger who took delivery. Thereafter he filed the present suit against the self-same judgment-debtor seeking injunction against trespass concerning the identical property and for realisation of damages for unauthorised plucking of coconuts. The suit was resisted on the contention that though the property sold is another item belonging to the second defendant, plaintiff/auction purchaser wrongly obtained delivery of the suit property which belongs to the first defendant. Under Order 8, Rule 6A of the Code of Civil Procedure first defendant filed a petition raising a counter-claim that he must be given delivery of the suit property from the plaintiff on the strength of his title. After raising three additional issues on this contention the Munsiff heard them preliminarily. On the ground that a counter-claim could be had only in a money suit the Munsiff held that the counter-claim is not maintainable in law. By a separate order the petition under Order 8, Rule 6A was also dismissed. Defendants seek to revise those two orders in these civil revision petitions.
2. The incorrectness of the reasoning of the Munsiff was never in dispute before me. In arriving at the conclusion that the right of a defendant to raise a counter-claim under Order 8 Rule 6A is limited by the Code to case where the dispute to only in respect of a money claim the Munsiff was guided solely by the decision in Jashwant Singh v. Smt. Darshan Kaur, AIR 1983 Patna 132. The decision of the Supreme Court in Laxmidas v. Nanabhai; AIR 1964 SC 11 and thedecision in Roman Sukumaran v. Madhavan, 1982 Ker Lt 376; (AIR 1982 Kerala 253) rendered by a single Judge of this Court following the same, holding that the contention that Rule 6A can apply only to suits for recovery of money has to fail, were not brought to the notice of the Munusiff.
3. There is definitely some difference between 'set-off' and 'counter-claim'. Set-off is also in a sense a counter-claim against the plaintiff, but in essence it is a form of defence in which the defendant while acknowledging the justice of the plaintiff's claim sets up a demand of his own to counter-balance it either wholly or in part. Written statement containing particulars of the debt sought to be set-off has also the same effect as a plaint in a cross-suit. The underlying policy is to settle all disputes between the plaintiff and the defendant at one time. The conditions to be satisfied before a defendant's claim to set-off can be entertained by the court are (1) the suit must be one to recover money, (2) the cross-claim sought to be set-off must be an ascertained sum of money, (3) the sum must be such as could be legally recoverable by the defendant from the plaintiff, (4) the claim should not exceed the pecuniary limit of the jurisdiction of the court, and (5) in respect of both claims the parties should fill the same character. Counter-claim is substantially a cross-suit. It is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. It need not be an action of the nature as the original action oreven analogous thereto even though the claim has to be one entertainable by the court. According to the dictionary meaning it is a claim made to offset another claim especially in law whereas set-off is something that counter-balances or makes up for something else.
4. It is very difficult to accept the proposition that a counter-claim can be made only in a suit for money. It is true that Rules 6A to G were inserted in the Code only by the amendment of 1976. But even before Rules A to G were introduced there were instances of counter-claims being allowed even in suits other than money suits and there was nothing in the earlier Code prohibiting the same. There is nothing in Rule 6A also limiting such claims to money suits in order to contend that what could be claimed is only the execess a mount due to the defendant after setting off what is due to the plaintiff under Rule 6, The words "in addition to his right of pleading a set-off under Rule 6" appearing in Rule 6A are not capable of making such a restriction. Rule 6 specifically says that plea of set-off is available only in suits for recovery of money and that too only regarding any as certained sum of money legally due from the plaintiff. But Rule 6A "provides that counter-claim is available in any suit regarding any right or claim in respect of a cause of action accruing to the defendant against the plaintiff. There cannot be any dispute that by introduction of new rule 6A, the right of a defendant to make a counter-claim has been enlarged to cover cases which could not have been covered by Rule 6. None of the restrictions in Rule 6 are there in Rule 6A. The words "in addition to his right of pleadinga set-off under Rule 6" appearing in Rule 6A need only be understood as enabling a defendant in a money suit also to plead not only set-off under Rule 6but also make a counter-claim for what is due to him after set-off. A different interpretation will only defeat the purpose and object of the provision to a void multiplicity of litigations by clubbing causes of actions and counter-claims similar or identical in nature and disposing them of by common judgments.
5. Rule 6F and Order XX Rule 19 are also not capable of abridging the scope and ambit of Rule 6A of Order 8. Those provisions deal with only cases of judgments and decrees in money claim where set-off or counter-claims in terms of money are allowed. That does not mean that in all cases counter-claims could only be in terms of money. Such an interpretation will render the conscious difference in the language of Rules 6 and 6A nugatory. The wordings in a suit and any right or claim in respect of a cause of action accruing to the defendant against the plaintiff in Rule 6A will be rendered meaningless and absurd if such a restricted interpretation is given. So also Rule 6D makes it clear that the counter-claim can independently proceed even if the suit of the plaintiff is stayed, discontinued or dismissed. That means the counter-claim has an independent existence of its own irrespective of the plaint claim.
6. Whether the counter-claim can be in respect of any claim that could be made the subject matter of a separate suit in relation to any cause of action accruing to the defendant against the plaintiff independent of and unconnected with the plaint claim or cause of action as held in Raveedran v. Mruthynjayan, 1986 Ker LT 1305 is not a matter that comes up for consideration in this case. Suffice it to say that Order 8, Rule 6C gives the right to plaintiff tocontend and the court to decide that any such counter-claim should not be entertained and decided in the suit but left to be decided in an independent proceeding. On theapplication of the plaintiff the Court is given the discretion to exclude any counter-claim which it thinks proper to be decided only in an independent suit. That means the code contemplated claims which could not and need not be entertained as counter-claims but left to be decided in independent suits as the Court considering the counter-claim deems fit. What those categories of counter-claims are need not be gone into here. So far as this case is concerned the counter-claim relates to the same property over which the plaintiff claims relief and the claim is counter to the title claimed by the plaintiff. The Munsiff was clearly wrong when he held that counter-claim is not maintainable for the reason that it did not relate to a money claim.
7. The additional issues considered by the Munsiff related to maintainability of the counter-claim, competency to raise such a counter-claim, res judicata and limitation. Though the Munsiff has not entered findings on all the issues he held that the counter-claim is not maintainable. Though not for the reasons stated by the Munsiff the finding will have to stand on admitted facts.
8. The court sale and delivery were admittedly in execution of the decree in O.S, 185 of 1977 of the Sherthallai Munsiff Court. The revision petitioners were the defendants and judgment-debtors who were parties to the decree and execution proceedings in which sale wasconductedand the property purchased and taken delivery of by the plaintiff who was the stranger auction purchaser in that case. The contention is only that though the property sold was another item belonging to the second defendant, the plaint property which belongs to the first defendant was wrongly taken delivery of. What the first defendant wants is declaration of his title on the finding that this is not the property sold and delivery was of the wrong property. On that finding he wants recovery on the strength of title.
9. This is the counter-claim and it has to be treated as the plaint in a cross-suit. The question is whether the first defendant could have filed a fresh suit for that relief. It that is not possible a counter-claim by way of written statement must also be held incompetent.
10. Section 47 C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. For the purpose of Section 47 a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed. So also all questions relating to delivery of possession of such properly to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47. In the matter of the plaint and the counter-claim, the dispute is regarding identity of the property sold and delivered over and it is between parties to the suit. On admitted facts the counter-claim is a matter that could be agitated only in execution and not by a separate suit. Simply on account of the fact that this aspect was not adverted to by the trial court, I do not think that the matter has to be remanded because such a course will not serve any purpose other than delay and harassment. Such a course is not necessary also because facts are admitted and no other conclusion is possible.
The result is that though not for the reasons assigned by the Munsiff, both the civil revision petitions are dismissed. No costs.