Punjab-Haryana High Court
Bhagtu vs Melu Ram on 28 May, 1991
Equivalent citations: (1992)101PLR635
JUDGMENT G.C. Garg, J.
1. Bhagtu plaintiff filed a suit for permanent injunction, inter alia, pleading that he was in possession of the suit land on one-half batai and earlier to him the same was in possession of one Indraj. It was alleged that the defendant purchased the suit land from Sunehari through a registered sale deed dated 12.10.1981. The plaintiff in order to establish his possession further alleged that Sunehari challenged the sale by filling a suit on the ground that the same did not affect her right and the sale was null and void. Though the suit was dismissed yet it had been found therein that Indraj used to cultivate the suit land Since the defendants were out to dispossess the plaintiff forcibly from the suit land in view of the sale deed dated 12.10.1981, the present suit for permanent injunction was filed.
2. Defendants contested the suit and admitted that the plaintiff was in possession of the suit land. Status of the plaintiff as tenant was denied and it was stated that he was in possession of the land in his capacity as licensee. The defendants further pleaded that after purchase of the land the licence of the plaintiff was revoked and he was in unauthorised possession. The defendants further made counter-claim in the written statement and prayed that a decree for mesne profits for use and occupation of the land as also for possession be passed in their favour.
3. The pleadings of the parties gave rise to the following issues:-
(1) Whether the plaintiff is in cultivating possession of the land in dispute as tenant under Shrimati Sunehari, if so its effect? OPP.
(2) Whether the defendants are entitled to the possession of the suit land in the present suit by way of counter-claim? OPD.
(3) Relief.
The trial Court found that the plaintiff was in possession of the property and that the defendants were not entitled to possession. The suit was consequently decreed for permanent injunction restraining the defendants from interfering in the possession of the plaintiff except in due course of law. The claim of the defendants made in the counter-claim for possession was denied.
4. The defendants preferred appeal against the judgment and decree of the trial Court on the ground that the plaintiff having failed to prove himself to be the tenant on the suit land the claim made by them for possession in the counter-claim could not be decided. The lower appellate Court affirmed the findings of the trial Court that the plaintiff failed to prove that he was tenant on the land in dispute. A further attempt was also made by the plaintiff to assert that he was the owner by adverse possession' but this plea was negatived and the claim of the defendants as made in the counter-claim for possession on the basis of the title accepted. Consequently, the appeal was allowed; judgment and decree of the trial Court was set aside and a decree for possession of the suit land was passed in favour of the defendants.
5. It is against judgment and decree of the lower appellate Court, the present appeal has been filed.
6. The sole contention of the learned counsel for the plaintiff is that the suit land was in possession of the plaintiff and he could not be dispossessed except in the due course of law. There is no quarrel with this proposition of law as the plaintiff is not being dispossessed except in due course of law. The learned counsel submitted that the defendants could not be granted a decree for possession in the facts of the present case as possession could not be claimed by filing a counterclaim. In other words, the contention of the counsed for the appellant is that counter-claim can be made only in a such a suit which relates to a money claim and not in any other suit. According to the learned counsel the present was a suit for permanent injunction and in such a suit the defendants could not ask for possession by way of counter-claim and thus, no decree could be passed in their favour for possession. In support of his submissions, the learned counsel relied upon Jashwant Singh v. Smt. Darshan Kaur, A.I.R. 1981 Patna 132 (D.B.). Ramani Ammal v. Susilemmal A.I.R. 1991 Mad. 163. Suhebrao Vithoba Pawar v. Bapurao Ravji Pawar, A.I.R. 1985 Bom. 426.
7. Jashwant Singh's case (supra) fully supports the contention of the learned counsel for the appellant. It has been categorically held therein that counter-claim can be made only in such suits in which there is a dispute in respect of money claim. The Division Bench in the aforesaid case came to the following conclusion:-
"In view of the amended Rule 19(1) which is a provision regarding preparation of the decree in respect of suit 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 learned counsel for the petitioner that counter-claim under the rules aforesaid can be made only in such suits in which there in dispute is respect of money claim, was 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 specification of the plaintiff by way of counter-claim. As such, the order amounts to an exercise of jurisdiction illegally and with material irregularity and for an interference by this Court."
Ramani Ammal's case (supra) has no bearing to the facts of the present case. The dispute whether any relief by way of counter-claim was made in the written statement or not and while dealing with this contention it was observed by the Madras High Court as under:-
"Therefore, we do not find merit in the said contention that there was a counter-claim and the counter-claim was decreed and that it has not been appealed."
In the earlier part of the judgment, their Lordship referred to the judgment of Patna High Court in Jashwant's Singh's case (supra) and observed that the same would apply but it is nowhere held that counterclaim can only be made in a suit where there is a money claim and not in any other suit. The following passage may again be referred to in that behalf with advantage:-
"In the instant case, even though on facts we came to the conclusion that the defendant has not put forward any counterclaim as contemplated under Order 8 Rule 6-A, C.P.C., we find that the relief for cancellation of the agreement in the case of breach of the agreement committed by the defendant herself, is only in the nature of counter-claim. The ratio laid down in the decision of the Division Bench of the Patna High Court would apply. The counter-claim is not maintainable."
As noticed earlier it has nowhere been found by the Madras High Court that counter-claim is not maintainable in a suit other than a suit for money claim.
8. In Sahebrao Vithoba Pawar's case (supra) the question involved was not whether counter-claim was maintainable in a suit other than a suit for money claim. The only question that fell for consideration was whether amendment of the written statement could be allowed to set up a counter-claim. Therefore, the said judgment is. also of no help to the counsel for the appellant.
9. But on the other hand, the learned counsel for the respondents submitted that the view taken by the Patna High Court in Jaswant Singh's case (supra) has not been accepted by this Court. The learned counsel placed strong reliance on Suman Kumar v. St. Thomas School and Hotel, (1986-2) 90 P. L. R. 168. to contend that this Court had taken a view that counter claim under Order 8 Rule 6-A of the Code of Civil Procedure can be made by the defendant in any kind of the suit. While coming to this conclusion, this Court had the occasion to consider not only Jashwant Singh's case (supra) but also various other judgments-including the one reported as Ramad Sukumaran v. Velayudhan Madhayar, A. I. R. 1982 Kerala 253. This Court preferred to endorse the view that was taken in Raman Sukumaran's case (supra). After carefully considering the entire matter, this Court held:-
"In any case, the Division Bench of this Court has made the said provision applicable even to the proceedings before the Rent Controller, and, thus, it is quite evident that now in view of the amendment in Rule 6 of Order 8, a counter-claim can be made by the defendant in any kind of suit i. e. whether a money suit or not."
As stated earlier also, the Kerala High Court had taken the same view in Raman Sukumaram's case (supra) as had been taken by this Court. The Kerala High Court had another occasion also to consider the said question in Pathrose Samual v. Karumban Parmeshwarrn, A.I.R. 1988 Kerala 163. wherein it was observed as under:-
"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 6-A 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 6-A also limiting such claims to money suits in order to contend that what could be claimed is only the excess amount 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 6-A 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-ascertained sum of money legally due from the plaintiff. But Rule 6-A 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 6-A, 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 6-A. The words "in addition to his right of pleading a set off under Rule 6" appearing in Rule 6-A need only be understood as enabling a defendant in a money suit also to plead not only set off under Rule 6 but 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 provisions to avoid multiplicity of litigations by clubbing causes of actions and counter-claims similar or identical in nature and disposing them of by common judgments."
The learned counsel for the respondents in support of his contention further placed reliance on Mahendra Kumar v. State of Madhya Pradesh, A.I.R. 1987 S.C. 1395. In this case a suit for declaration of title to a treasure was made. The defendants after filing written statement, made a counter-claim claiming title to the treasure. Though basic question before the apex Court was, whether counter-claim could be made after the written statement had been filed besides other question, the question whether provisions of Rule 6-A of Order 8 of the Code of Civil Procedure bar the filing of counter-claim after filing of the written statement was considered and it was held that the provisions of Rule 6-A do not on the face of it bar the defendant to file counterclaim after he had filed written statement. It was further held that what was laid down under Rule 6-A (1) was 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 had expired, whether such counter-claim was in the nature of a claim for damages or not. It was thus, held that the counter-claim was maintainable. As already observed, it was a suit for declaration and a claim to a treasure was made therein. It was obviously not a suit for money claim and, in my view, the Supreme Court was alive to the situation whether counter-claim could be made in a suit for money claim or not.
10. This Court, as already observed, has taken a view that counter-claim can be made by the defendant in any kind of a suit and I am in respectful agreement therewith. In my opinion also, counter claim can be made by a defendant in any kind of the suit whether it is a money suit or not. Mahendra Kumar's case (supra) i.e. the judgment by the apex Court further lends support to the view which has been taken by this Court.
11. In view of what has been observed above, I see no merit in the contentions of the learned counsel for the appellants, and the same are rejected. Consequently, the appeal fails and is dismissed. No costs.