Orissa High Court
Basanta Behera And Others vs Menakabala Behera And Others .... ... on 8 April, 2019
Equivalent citations: AIR 2019 ORISSA 76, AIRONLINE 2019 ORI 76, (2019) 1 ORISSA LR 1044, (2019) 200 ALLINDCAS 402, (2019) 4 CIVILCOURTC 530
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA : CUTTACK
C.M.P. No.1101 of 2018
In the matter of an application under Article 227 of the
Constitution of India.
-----------
Basanta Behera and others .... Petitioners
Versus
Menakabala Behera and others .... Opposite Parties
For Petitioners ... Mr. D.P. Mohanty,
Advocate
For Opposite Party ... None
Nos.1 to 5
For Opposite Party ... Mr. B. N. Bhuyan,
No.6 Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing : 03.04.2019 | Date of Judgment : 08.04.2019 Dr. A.K.Rath, J. The seminal question that hinges for consideration of this Court is as to whether a defendant can file a counter claim against a co-defendant ?
2. The dispute lies in a narrow compass. The facts need not be recounted in detail. Suffice it to say that the plaintiff- opposite party no.1 laid the suit for partition before the learned 1st Addl. Civil Judge (Senior Division), Cuttack. Defendant nos.1 and 4 to 10-petitoners herein filed a joint written statement.
2Defendant no.14 filed a written statement along with counter claim. The counter claim is confined to defendant nos.7 and 8 only. The suit scheduled properties in the counter claim are different from that of the plaint. While matter stood thus, defendants-petitioners filed an application under Or.VIII R.6-C CPC for exclusion of the counter claim. Defendant no.14 filed objection. Learned trial court rejected the same on 7.5.2018. This petition seeks to laciniate the said order.
3. Heard Mr. D. P. Mohanty, learned counsel for the petitioners and Mr. B. N. Bhuyan, learned counsel for the opposite party no.6.
4. Mr. Mohanty, learned counsel for the petitioner submitted that the property described in the counter claim is not the subject-matter of the suit. Or.VIII R.6-C CPC provides that the defendant can set up a counter claim against the claim of the plaintiff in respect of the cause of action accruing against the plaintiff. Elaborating submissions, he contended that the defendant no.14 has no claim against the plaintiff. The counter claim has been filed against the co-defendant nos.7 and 8. He further submitted that when defendant no.14 in her counter claim admits that the property mentioned in the counter claim is the joint family property of defendant nos.7, 8 and 14, which is not the subject-matter of the suit and the plaintiff has no connection with the same, the counter claim in respect of the different properties other than the suit properties is not maintainable. To buttress the submission, he placed reliance on the decisions of this Court in the case of Indumati Sahu Vrs. The Secretary, Rotary Club, Puri & Anr., 2017 (I) ILR - CUT - 463 and Purna Chandra Biswal Vrs. Kiran Kumari Brahma, 2017 (I) ILR- CUT - 805.
35. Mr. Bhuyan, learned counsel for the opposite party no.6 submitted that in a suit for partition, plaintiffs are the defendants and vice versa. Thus the counter claim can be laid against the co-defendants. To give quietus to the issue and avoid multiplicity of proceedings, the left out property can be included in the counter claim. Or.VIII R.6-C CPC is not a bar to file any counter claim against the co-defendant. He placed reliance on the decision of the apex Court in the case of Jag Mohan Chawla and another Vrs. Dera Radha Swami Satsang and others, AIR 1996 SC 2222.
6. R.6-A of Or.8 CPC provides for counter claim by defendant. R.6-C provides for exclusion of counter claim. R.6-A(1) and R.6-C of Or.8, which are relevant, are quoted hereunder :
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) to (4) xxx xxx xxx.
6-C. Exclusion of counter-claim - Where any 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 4 may, on the hearing of such application make such order as it thinks fit.
7. In Purna Chandra Biswal, this Court held that the words "any right" appearing in Rule 6(A) (1) of Order 8 C.P.C. mean right over the suit land. Thus the defendant cannot file a counter claim in respect of the property, which is not the subject- matter of suit.
7.1 In the said case, the subject-matter of the suit as well as counter claim was totally different. The claim was filed in respect of different cause of action, which has no bearing on the suit land. The counter claim was excluded.
8. The apex Court in the case of Rohit Singh Vrs. State of Bihar (now State of Jharkhand), (2006) 12 SCC 734, held that normally, a counter claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. A counter claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. But a counter claim directed solely against the co-defendants cannot be maintained. By filing a counter claim the litigation cannot be converted into some sort of an inter pleader suit. The same view was reiterated in the case of Indumati Sahu.
9. Or.8 R6-C CPC does not carve out an exception. The language is plain and unambiguous. The apex Court in the case of State of Jharkhand Vrs. Govind Singh, AIR 2005 SC 294 held that a construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity.
510. The apex Court in the case of J. P. Bansal Vrs. State of Rajasthan, 2003 (5) SCC 134 held that when the words of a Statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning. The Courts are bound to give effect to that meaning irrespective of consequences. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said.
10.1. Taking a cue from the Commissioner of Sales Tax, M.P. Vrs. Popular Trading Company, Ujjain (AIR 2000 SC 1578, it was further held that while interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process.
11. Counter-claim is treated as a cross suit. Even if, the suit is dismissed, the counter claim shall remain alive for adjudication. The question does arise in such an eventuality, whether the counter claim between the co-defendants shall remain alive ? The apex Court in the case of Rohit Singh in no uncertain terms held that a counter claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. But the counter claim directed solely against the co- defendants cannot be maintained. By filing a counter claim, the litigation cannot be converted into some sort of an inter pleader suit.
612. The ratio in Rohit Singh proprio vigore applies to the facts of the case.
13. In the instant case, defendant no.14 laid the counter claim against the co-defendants. Learned trial court fell in patent error in law in not excluding the counter claim. If the order is allowed to stand, the same would occasion failure of justice.
14. The decision in the case of Jag Mohan Chawla and another is distinguishable on facts. The question arose before the apex Court was 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. 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. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. The words "any right or claim in respect of a cause of action accruing to 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.
14.1. 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 7 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. There is no quarrel over the proposition of law.
15. In the wake of aforesaid, the impugned order is quashed. The petition is allowed. The counter claim filed by defendant no.14 is excluded. There shall be no order as to costs.
.............................
DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 8th April, 2019/Uks