Patna High Court
Gaya Prasad vs Smt. Jamwanti Devi And Ors. on 20 May, 1997
Equivalent citations: AIR1998PAT53, 1997(45)BLJR1137, AIR 1998 PATNA 53, (1997) 2 PAT LJR 446, 1997 BLJR 2 1137, (1998) 4 CIVLJ 128, (1998) 4 CURCC 164, (1998) 1 BLJ 67
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
ORDER Prasun Kumar Deb, J.
1. This revision petition has been preferred against the order dated 30-9-1996 passed by the then Munsif at Jamshedpur in Eviction Suit No. 35 of 1986 whereby the petition filed by the defendant-petitioner for passing appropriate order on the counter-claim raised by defendant No. 1 has been rejected in holding that the counterclaim can only be raised n respect of money suit relying on the Division Bench judgments of this Court in Jashwant Singh v. Smt. Darshan Kaur, AIR 1983 Patna 132 and Most. Pemlo alias Pemplo v. Hiralal Mahto, 1992 (2) PLJR 358.
2. The opposite parties as plaintiffs filed the abovementioned eviction suit against the defendants-petitioner on the relationship of landlord and tenant. The defendant by filing the written statement denied the relationship of landlord and tenant and in paragraphs 12 and 13 of the written statement it had been pleaded that the plaintiffs were never in exclusive possession of the suit building nor owned it nor the same was ever let out to the plaintiff's father rather the defendant was all along in possession of the suit land along with the houses thereon as of their own right and it has been claimed that their right, title and interest be declared in the suit.
3. The crux of dispute is with regard to the counter-claim whether maintatnable in the present form when the suit is a simpliciter eviction suit and the defendant is trying to set up his claim in that suit premises and whether such counterclaim can be maintainable in the eviction suit. It must be mentioned here that Order VIII, Rule 5 before amendment of the Code of Civil Procedure in the year 1976 was with respect of set off of claim in a money suit. By amendment of 1976, Rule 6A has been added in the form of counterclaim by the defendant in the suit. Rule 6-A reads as follows:--
"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."
This amended provision has been included only to curtail the multiplicity of the suits. If a suit has been filed by one party for claim against the other party then the adverse party can make a counter-claim with some limits as mentioned in that section itself. Limitations are :--
(i) That the cause enaction of the defendant against the plaintiff must accrue either before or after the filing of the suit but before the defendant has delivered his defence or before the time limit of his delivery of defence has expired;
(ii) That the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court where the suit is pending.
4. The first decision regarding this Rule 6A is Jashwant Singh (supra) equivalent to 1983 PLJR 285 wherein it was held by a Division Bench of this Court that even after amendment of the Code of Civil Procedure by insertion of Rule 6A of Order VIII lit has not extended the nature of counter-claim/set off beyond the money suit, Harmonious construction of this section was tried to be made by reading Order XX, Rule 19 of the Code of Civil Procedure. It was observed by the Division Bench of this Court that even though Rule 6A has given extension to Rule 6 of Order VIII and although money claim has not been specifically mentioned in Rule 6A but by harmonious construction of Order VIII Rule 6A and 6F and Order XX, Rule 19 would definitely lead to one and only one conclusion that the counter-claim can also be raised only in respect of money claim. Rule 6F after amendment mentions both about set off and counter-claim in respect of money suit and, therefore, it was held that when Rule 6F specifically mentions about the money claim regarding counter-claim also, then Rule 6A must also refer to money claim alone. But Rule 6A is general category regarding the counter-claim. There is a difference between the set off and the counter-claim. Set-off relates only to the money claim which has been made by the plaintiff regarding a part or whole of it, but counter-claim cannot be restricted to the claim of the plaintiff alone. So counter-claim in respect of money suit also stands on different footing than that of set off. A single Bench of this Court was in doubt about the anunciation of principle regarding Order VIII, Rule 6A as interpreted by the Division Bench of this Court in Jashwant Singh (supra) and as such referred the matter again to a Division Bench then a Division Bench of this Court again held that on harmonious construction of Order VIII, Rule 6A with Order XX Rule 19(1), counter-claim could only be maintainable in respect of money suit and not in any other matter and it cannot be extended to the title or ascertainment of shares in the property. Order XX Rule 19(1) was in vogue before the amendment of 1976 regarding set off alone and after amendment of 1976, word 'counter-claim' was only being inserted after the word 'set off' and other portion remaining intact.
5. Set off was there before the amendment and that was in respect of money claim alone and the principle of counter-claim has been included after amendment of 1976 and counter-claim was inserted only to curtail the multiplicity of the suits. If counter-claim was to be restricted for money claim alone, then there was no necessity of assertion of a new Rule 6-A rather the word 'counter-claim' could have been included by inserting 'Or counter claim' after the word 'set off in the existing Rule 6 of Order VIII but that has not been done. The Legislators with their wisdom and pre-concieved notion of lingering of suits and multiplicity thereof had with the very purpose of curtailment of multiplicity of suits between the same parties in respect of the subject-matter or outside of it inserted new Rule 6A. Order XX deals with judgment and decree. Decree in respect of money suit where set off claim was there and allowed then how the decree should be prepared that had been mentioned in Rule 19 of Order XX. After amendment of 1976and insertion of Rule 6A under Order VIII. in Rule 19(1) of Order XX the word "Or counter-claim" has been inserted after the word "set off keeping the other wordings of the Rule intact. The Division Bench of this Court in both the judgments made conservative notion of interpretation of Rule 6A by referring to money claim remaining intact in Rule 19(1) of Order XX. Harmonious construction should always be in broader sense keeping in mind the whole intention of the Legislature. It has already been mentioned that insertion of Rule 6A of Order VIII was always to extend the limit of set off by introducing counter-claim without mentioning about the category of suit and; such extension cannot be restricted in the name of harmonious construction of Rule 6F of Order VIII and Rule 19(1) of Order XX. It appears that the Division Bench of this Court in both the judgments as mentioned above had restricted themselves with conservative ideas and the very purpose and intention of the Legislature of insertion of Rule 6A under Order VIII had not been considered in their proper perspective. Practically (he latter judgment in Pemlo (supra) is nothing but reiteration of the earlier judgment of Jashwant Singh (supra) and the approach and angle of discussions of both the judgments remained the same. This judgment of Jashwant Singh (supra) was referred to in the various High Courts in such sorts of cases and always Jashwant Singh (supra) had been dissented to. Mention may be made in the case of M.F. Katariya v. L.H. Katariya, AIR 1994 Bom 196 wherein a single Judge of the Bombay High Court has held that under Order VIII, Rule 6A, a counter-claim cannot be limited to money suit, alone. In that suit, the plaintiff claimed ownership and possession over the suit property and a counter-claim was raised by the defendant setting up his ownership over the suit property and on the basis of Order VIII, Rule 6A, counter-claim of the defendant was allowed and the decree was passed in favour of the defendant. Jashwant Singh (supra) was discussed and then dissented to. In the Punjab & Haryana High Court in Sumari Kumar v. St. Thomas School & Hostel, AIR 1988 P & H 33, again Jashwant Singh (supra) was referred to in respect of counterclaim and it was dissented to the effect that counter-claim cannot be restricted in respect of money suit alone and it should be applied in respect of other suits also. In that case before the Punjab & Haryana High Court, a suit was filed seeking permanent injunction. The defendant in that suit had set up his own title over the suit premises and prayed for declaration of his title over the same. On such initiation of counterclaim, the plaintiff wanted to withdraw his suit then it was held that when counter-claim remained with the defendant, the same should be decided by the same Court even if the plaintiff is allowed to withdraw. In Kavindra Jain v. Amritlal, AIR 1992 MP 131, it was held that Order VIII, Rule 6A in respect of counter-claim can be maintainable in a suit for specific performance also and counter-claim cannot be restricted to a money suit alone. It was held by Madhya Pradesh High Court that on a plain reading of the language of Rule 6A of Order VIII abundantly clarifies that the defendant has been given a right to set up any right or claim in respect of a cause of action accruing to the defendant against the plaintiff by way of counter-claim but with the restrictions which are specifically mentioned under Rule 6A itself. It has been held that counter-claim can never he restricted to money claim alone. The same view has been expressed by the Karnataka High Court in M/s/ Anand Enterprises, Bangalore v. Syndicate Bank, Bangalore, AIR 1990 Karnataka 175. In that case, difference between set off and the counter-claim has been explained. In that suit filed by the Bank, the defendant took the plea of damages from the Bank due to Joss suffered by the defendant on account of delay in advancing loan by the Bank and it was held that suchclaim is not a counter-claim of the defendant but only a set off. In Ramsewak Kashinath V. Sarafuddin, AIR 1991 Orissa 51, again Jashwant Singh (supra) was referred and dissented to: It was held that counter-claim is not restricted to money claim alone. Kerala High Court in Raman Sukumaran v. Velayudhan Madhyavan, AIR 1982 Ker 253 has also expressed the same view; Recently the Apex Court has dealt with the matter in two judgments. In Jag Mohan Ghawla v. Dera Radha Swami Satsang, (1996) 4 SC 699 : (AIR 1996 SC 2222), while interpreting Order VIII, Rule 6A to 6G it was held that counter-claim need not relate to money claim alone or the original cause of action but can be made on an independent and different cause of action, even on one which accrued to defendant after institution of the suit. The Apex Court went to the extent of changing the subject-matter of the suit even in respect of counter claim. It was held by the Apex Court that in a suit for injunction, counter-claim with injunction by the defendant in respect of the same property or different property between the same parties is also maintainable. The same view has been reiterated by the Apex Court in Gurubachan Singh v. Bhag Singh, AIR 1996 SC 1087.
6. Rule 6A, as stated above, was introduced by amendment of 1976 and the very purpose of introducing this new rule on the recommendation of the Law Commission of India was to avoid multiplicity of the proceedings inasmuch as ignoring the frame of suit and giving right to the defendant to raise not only the plea of set off but also counter-claim by setting up rights to himself irrespective of the fact whether the cause of action for counter-claim had accrued afterwards of the filing of the suit. It was specifically observed by the Division Bench of the Apex Court that by insertion of Rule 6A, the scope (matter unclear) defence claim has been broadened irrespective of category of suit and cause of action arising after the filing of the suit with only restriction of pecuniary jurisdiction of the Court where the suit has been filed so that counter-claim cannot take away the jurisdiction of that Court. In a suit for injunction, counter-claim of possession by the defendant can be entertained under Order VIII, Rule 6A of the Code of Civil Procedure.
7. As I have mentioned earlier from the wordings and plain reading of Rule 6A of Order VIII it is clear that it contemplates counter-claim with respect to any suit without having any restriction. The scheme of new rule to permit the defendant to set up counter-claim which arises between the parties and which are not non-cognizable to the Court where the suit is pending, the object is to reduce the pendency of the cases so that claims and cross-claims similar in nature can be disposed of by the common judgment. Order XX, Rule 19(1) cannot restrict by harmonious reading of Order VIII, Rule 6A rather if it is restricted in that sense then the whole purpose of introduction of new Rules 6A to 6G would be frustrated.
8. Thus, from the above analogy, I find and hold that the counter-claim made by the defendant-petitioner in the suit by setting up the claim of title on him is maintainable and the same should be entertained by the learned Court below in its proper perspective on the basis of limitations as made within Rule 6A itself as mentioned above. Regarding payment of Court-fee, the matter is open to the Court below to ask for proper Court-fee if not paid by the defendant for the purpose of their claim and hence the impugned order is hereby set aside and the matter is sent back to the learned Munsif, Jamshedpur, for reconsideration in the light of the observations made above.
9. This revision petition is allowed and the matter is remitted back to the Court below in the light of the observations made above.