Jharkhand High Court
Ganesh Tiwari And Anr. vs Ramakant Tiwari And Ors. on 9 January, 2007
Equivalent citations: 2007(1)BLJR831, 2007 (1) AIR JHAR R 923, 2007 A I H C 1806, (2007) 1 JLJR 472, (2007) 2 JCR 521 (JHA), (2007) 55 ALLINDCAS 851 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
Page 0832
1. Petitioners who are Defendant Nos. 1 and 2 have challenged the order dated 13.9.2004 passed by Munsif, Garhwa in Partition Suit No. 22/2003 whereby he in purported exercise of power under Order 8 Rule 6 CPC has disallowed the so called counter claim made by the petitioners in the written statement.
2. Plaintiff/respondent No. 1 instituted the aforesaid suit for a preliminary decree in respect of 1/6th share of the properties fully described in Schedule A, B, C, D and E of the plaint.
3. Plaintiffs' case inter alia is that he and the defendants are the sons and daughters of late Bateshwar Tiwari who had acquired Schedule-A land. Schedule-B lands were acquired by him through Partition Suit No. 24/1923. Schedule 'C' lands were acquired by the mother of the parties, whereas plaintiff and defendant Nos. 1, 2 and 3 acquired Schedule-D property. It was alleged that Pucca Well described under Schedule 'F' was constructed by plaintiff from his own earnings. Bateshwar Tiwari died in the year 1993 and his wife died in the year 1995 and the suit properties possessed by the plaintiff defendant Nos. 1, 2 and 3 only since defendant Nos. 4 and 5 have been married and are well settled in life and they are not interested in taking any share in the property. Defendant/petitioners filed written statement stating that suit is not maintainable for partial partition. According to these defendants there are several other properties which were acquired out of joint family fund but the same were not included for partition. Defendants' case is that they were in Military Service and were posted at different places and used to send money to the joint family. It is alleged that several other properties described in Schedule A-1 of the written statement were acquired by the Page 0833 income of defendant No. 1 and 2, Some of these properties have been included in Schedule 'A' to the plaint. Likewise several other properties acquired by joint family fund have been intentionally left out in Schedule 'B' of the plaint. Defendants' further case is that Schedule-C property were not acquired by mother of the parties but were acquired out of joint family fund. So far Schedule-D properties are concerned, it is alleged that they were purchased in the name of the plaintiff but they were acquired out of the income of Defendant Nos. 1 and 2. It is alleged that during the lifetime of the father and instead of jointness various other properties were acquired out of joint family fund but those properties have been intentionally excluded in the plaint.
4. After the filing of the written statement, plaintiff filed a petition purported to be under Order 8 Rule 6(c) read with Section 151 C.P.C. for excluding the properties described in Schedule A of the written statement by way of the counter claim. Petitioner filed rejoinder reiterating that the properties were acquired out of joint family fund will certainly be available for partition notwithstanding that the same have been acquired in the name of one or other persons. The court below after hearing the parties passed the impugned order and disallowed the so-called counter claim of Defendant Nos. 1 and 2 by excluding the properties described in Schedule A-1 to the written statement from partition. The court below disallowed the claim of the defendants for partition of the property described in Schedule-A-1 on the ground inter alia that those properties stands in the name of different persons other than the parties to the suit and these properties are not the joint family property. The court below therefore, held that the petition filed by the plaintiff for excluding those properties is fit to be allowed under Order 8 Rule 6(C) read with Section 151 of the Code of Civil Procedure.
5. Rule 6(A), 6(B) and 6(C) have been inserted in the Code of Civil Procedure by C.P.C. (Amendment) Act 1976. Rule 6(A) to 6(D) of Order 8 reads as under:
6-A. 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, 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.
6-B. Counter-claim to be stated-Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.
Page 0834 6-C. Exclusion of counter-claim-Where a defendant sets up a counter-claim 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 orders as it thinks fit.
6-D. Effect of discontinuance of suit- If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.
6. As a matter of fact, Rule 6(A) to 6(G) have been inserted in C.P.C. (Amendment) Act 1976 with a view to making detailed provisions regarding counter claim. The main object of introducing these Rules is to reduce the pendency of the cases, so that the claims and counter claims of similar nature can be disposed of in one suit.
7. The amended provision of Order VIII Rule 6(A) and Rule 6(C) has been considered by the Supreme Court in the case of Jag Mohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. . In that case a suit was filed by the plaintiff for perpetual injunction to restrain the respondents from interfering with their possession over the suit property. On receipt of summons, the defendants-respondents filed written statement pleading, inter alia, that they had purchased portion of the land from the rightful owner and they are in possession and enjoyment of the said land. The plaintiffs disputed the averments made by the defendants in their counter claim and pleaded that the counter claim is not maintainable. An application under Order VIII Rule 6(C) and Section 151 C.P.C. was filed by the plaintiffs praying to exclude the counter claim from the written statement. The Subordinate Judge, dismissed the application. The revision application filed by the plaintiffs also stood dismissed by the High Court. The plaintiffs then moved the Supreme Court by filing Special Leave Petition. The Supreme Court discussed the newly amended provision and observed:
The question therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? It is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6A(1) provides that a defendant in a suit may, in addition to his right of pleadings 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 damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to Sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplifies that 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. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. Page 0835 The counter-claim is directed to be treated, by operation of Sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala , had come to consider the case of the suit and cross suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counterclaim in the written statement for the rendition of accounts against the appellant and paid the court-fee as plaint. They also sought a prayer to treat the counter-claim as a cross suit. The trial Court dismissed the suit and the counter-claim. On appeal, the learned single Judge accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter-claim for settlement of their claim and defence in written statement as a cross suit. The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be comformable to Order 20, Rule 18, C.P.C. but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right to the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In Sub-rule (1) of Rule 6A, the language is 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 is not longer confined to money claim or to cause of action of 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 of claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court-fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is 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. Acceptance of the contention of the appellant Page 0836 tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises to illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar v. State of Madhya Pradesh , where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation.
8. In the case of Smt. Gowramma v. Nanjappa and Ors. , the provision of Order 8 Rule 6A has been considered by the Karnataka High Court and it was held:
When a suit for partition is filed, by a member of a joint family, he expresses his unequivocal intention to separate himself from the joint family and consequently there is a severance of joint family status from the date of suit. A suit for partition is invariably brought in respect all the joint family properties. Every person (including female members) who is entitled to a share on partition is impleaded as plaintiff or defendant, having regard to the fact that any decree which gives a property or a portion of a property to a plaintiff, takes away the right of the other members in that property or portion of the property, and non-impleading of the necessary parties will lead to its dismissal. (Where however partition is claimed branch-wise by any particular branch, it may be sufficient if the heads of all the branches are made parties). In a suit for partition, each defendant is entitled to seek partition and separate possession of his share by paying the specifically prescribed Court Fee for such purpose. When a plaintiff seek partition, he is seeking partition not only against the defendants but also against his co-plaintiff, if any. Similarly when a defendant seeks partition, the relief is sought not only against the plaintiffs, but against the co-defendants also. In other words, each party to a suit for partition, whether a plaintiff or defendant, who seeks the relief of partition and separate possession by paying separate Court Fee, is in the position of plaintiff with reference to all other parties to the suit. When a defendant seeks partition and separate possession of his share, in a suit for partition filed by a plaintiff, the defendant's claim neither a set off, nor a counter claim against the plaintiff in the traditional sense, but is one of a wider scope. The Karnataka Court Fees and Suit Valuation Act, 1958 treats a counter-claim and a defendant's claim for partition differently by providing for them under Section 8 and 35(3) respectively and prescribes different types of Court Fee. Therefore, when the defendants in a suit have paid separate Court Fee and sought partition and separate possession of their shares also, the suit cannot be dismissed as withdrawn or settled out of Court by plaintiff with other defendants.
9. From perusal of the order, prima facie I am of the view that the Court below has committed serious error of law in excluding or disallowing the counter-claim made by the defendants-petitioners in the written statement. The Court below after taking into consideration the fact that the properties sought to be included by way of counter-claim Page 0837 for partition stand in the name of different persons and, therefore, unless defendants file separate suit for declaration that the said properties are joint family properties and unless a decree to that effect is obtained, the properties cannot be included in the suit by way of counter-claim. Perhaps, the Court below has not correctly appreciated the provisions of Order VIII, Rule 6(A) to 6(D) of the Code of Civil Procedure. Sub-section (4) of Rule 6(A) clearly provides that counterclaim shall be treated as plaint and governed by the rules applicable to plaints. In other words, all provisions relating to a plaint provided in the Code of Civil Procedure and also relating to the valuation of the counter-claim and payment of Court-fee shall have to be followed. Merely because a separate suit for declaration in respect of the property sought to be included by way of counter-claim as joint family property would be maintainable, that cannot be a ground to disallow the counter-claim made by the defendants for deciding the question in the same suit. It is well settled that counter-claim could be treated as cross suit but could be decided in the same suit without relegating the parties to a fresh suit. Instead of relegating defendants to an independent suit and to avoid multiplicity of proceedings, provisions have been inserted under Order VIII, Rules 6(A) to 6(D) in the Code of Civil Procedure. As held by the Supreme Court, the defendant can claim any right by way of counter-claim in respect of any cause of action even though independent of the cause of action averred by the plaintiff. It is a different thing that defendant has to fulfill all the mandatory requirements of a plaint and also has to prove the assertion made in the counter-claim for getting any relief from the Court. In my view, therefore, the Court below has erred in law in allowing the plaintiffs application and excluding counter-claim made by the defendants. The impugned order, therefore, cannot sustain in law.
10. For the aforesaid reasons, this writ application is allowed and the impugned order is set aside. Consequently, counter-claim made by the defendant-petitioners is allowed.