Writ Petition No.1722 of 2010

24th June, 2016.

Petitioner Counsel: Shri N.R. KANUNGO, h/f Shri S.S. VODITEL
Respondent Counsel: Shri J.T. GILDA, Shri A.S. KILOR

Cases Cited:
Vijay Prakash Jarath Vs. Tej Prakash Jarath, 2016 ALL SCR 625=2016 (3) SCALE 211 [Para 6]
Gayathri Women’s Welfare Association Vs. Gowramma and another, 2011 ALL SCR 786=AIR 2011 SC 785 [Para 8,11]
Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, AIR 1996 SC 2222 : (1996) 4 SCC 699 [Para 8,9,11]

JUDGMENT

JUDGMENT :- Heard Shri N.R. Kanungo, Advocate h/f Shri S.S. Voditel, Advocate for the petitioner original defendant No.1, Shri J.T. Gilda, Advocate for the respondent Nos.1 and 2 original plaintiffs and Shri A.S. Kilor, Advocate for the respondent Nos.9 and 10 - original defendants 8 and 9. Petition is dismissed against respondent Nos.3, 4 and 7. None appears for the other respondents.

2. The petitioner defendant No.1 has challenged the order passed by the trial Court allowing the application (Exh. No.86) filed by the respondent Nos.1 and 2 - original plaintiffs and directing exclusion of counter-claim made by the petitioner defendant No.1.

3. The plaintiffs filed the civil suit praying for decree for specific performance of contract or in the alternative for refund of consideration, for damages and interest. According to the plaintiffs, the family of defendant Nos.1 to 7 owned property admeasuring about 8508 Sq. Ft. with the house thereon, out of which the defendant Nos.2 and 3 had executed sale-deed in respect of 3600 Sq. Ft. of rear side of the property in favour of the plaintiffs on 14th May, 1999. The case of the plaintiffs is that the defendant Nos.2 and 3 father and mother of defendant No.1, had executed the above sale-deed when the defendant No.1 was minor, in the capacity as guardian of defendant No.1. According to the plaintiffs, the defendants had assured to execute the sale-deed in respect of remaining portion of property after defendant No.1 attains majority. The plaintiffs have pleaded that the defendants avoided to execute the sale-deed after the defendant No.1 attained majority and the plaintiffs got knowledge that there was some transaction between the defendant Nos.1 to 7 with the defendant No.9 and treating it to be refusal on the part of the defendant Nos.1 to 4 to perform their part of contract, the plaintiffs filed the civil suit.

4. The defendant No.1 filed his written statement opposing the claim of the plaintiffs. Along with the written statement, the defendant No.1 submitted his counter-claim pleading that the agreement dated 26th December, 1996 of which the specific performance is sought by the plaintiffs is not legal. The defendant No.1 has pleaded that the defendant Nos.2 and 3 had no authority to deal with the property of defendant No.1 when he was minor. The defendant No.1 prayed for decree for possession of the strip of land 3600 Sq. Ft. by cancelling the sale deeddated 14th May, 1999. The defendant No.1 prayed for decree against the plaintiffs to hand over possession of the property after removing the additional structures erected thereon.

The plaintiffs have filed their written statement to the counter-claim. In the written statement, the plaintiffs pleaded that the counter-claim made by the defendant No.1 is not maintainable and has to be excluded and if at all the defendant No.1 intends to raise the challenge to the sale-deed dated 14th May, 1999, the defendant No.1 may file separate civil suit.

5. The civil suit progressed and the trial Court framed issues on 15th October, 2008. Before recording of evidence could begin, the plaintiffs filed the application (Exh. No.86) praying that the counter-claim be excluded.

The plaintiffs filed an application (Exh. No.90) under Order 7 Rule 11(d) of the Code of Civil Procedure praying that the counter-claim made by the defendant be rejected.

The learned trial Judge, by the impugned order, has granted the prayer of the plaintiffs and has directed exclusion of counter-claim and in view of this order, the learned trial Judge has not passed any orders on the application (Exh. No.90). The defendant No.1 being aggrieved by the order passed by the trial Court excluding his counter-claim, has filed this petition.

6. The learned Advocate for the petitioner has submitted that the counter-claim made by the defendant No.1 satisfies all the other requirements as per Order 8 Rule 6A of the Code of Civil Procedure, that the claim of the defendant No.1 is in respect of the same property which is the subject matter of civil suit, that the claim of the defendant No.1 is against the plaintiffs and there is no impediment because of which the counter-claim made by the defendant No.1 cannot be considered along with the claim of the plaintiffs and, therefore, the trial Court should have continued with the counter-claim alongwith the suit.

It is submitted that the basic requirement that the cause of action in respect of which the counter-claim is made should accrue before the defendant has delivered his defence, is fulfilled in the present case and, therefore, the trial Court should have continued with the trial of the counter-claim made by the defendant No.1. To support the submission, reliance is placed on the judgment given in the case of Vijay Prakash Jarath V/s. Tej Prakash Jarath reported in 2016 (3) SCALE 211 : [2016 ALL SCR 625].

The learned Advocate for the petitioner argued that as per the provisions of Order 8 Rule 6C of the Code of Civil Procedure, the plaintiffs were required to object to the counter-claim before settlement of issues in relation to the counter-claim. It is submitted that in the present case, the application (Exh. No.86) is filed by the plaintiffs after the settlement of issues and, therefore, the request of the plaintiffs to exclude the counter-claim could not have been considered by the trial Court.

The learned Advocate has submitted that the trial Court has committed an error of jurisdiction by directing exclusion of the counter-claim made by the defendant No.1. It is prayed that the petition be allowed, impugned order be set aside, the application (Exh. No.86) filed by the plaintiffs be dismissed and the trial Court be directed to proceed with the counter-claim made by the defendant No.1, along with the civil suit.

7. Shri J.T. Gilda, Advocate for the respondent Nos.1 and 2/plaintiffs has submitted that the counter-claim made by the defendant No.1 is in respect of different cause of action and the claim of the defendant No.1 incounter-claim is essentially against the codefendants and, therefore, the defendant No.1 cannot be permitted to make the counter-claim.The learned Advocate has submitted that the provisions of Order 8 Rule 6A of the Code of Civil Procedure enables the defendant to make counter-claim against the plaintiff but the claim made by the defendant No.1 in counter-claim is not against the plaintiffs but is against the codefendant and, therefore, the defendant No.1 cannot make the counter-claim.

The learned Advocate has pointed out the objection raised by the plaintiffs in the written statement filed by them to the counter-claim. It is submitted that though the application (Exh. No.86) is filed after the settlement of issues, the objection to the counter-claim was taken at the initial stage in the written statement before the settlement of issues and, therefore, the submission made on behalf of the defendant No.1 relying on the provisions of Order 8 Rule 6C of the Code of Civil Procedure is of no consequence. The learned Advocate has pointed out the provisions of Order 8 Rule 23 of the Code of Civil Procedure (as applicable to the State of Maharashtra) and has submitted that the trial Court has rightly considered these provisions for excluding the counter-claim. It is submitted that the impugned order is proper and it cannot be said that the trial Court has committed any patent illegality or irregularity which necessitates the interference with the impugned order.

8. The learned Advocate for the petitioner, in reply, has submitted that the contention of the respondent Nos.1 and 2 that the counter-claim made by the defendant No.1 cannot be permitted as it is basically against the codefendant, is not correct. It is submitted that the claim of the defendant No.1 is against the plaintiffs and the defendant No.1 is praying for decree for cancellation of the sale-deed executed on 14th May, 1999 in favour of the plaintiffs and the defendant No.1 is also seeking decree for possession against the plaintiffs. It is argued that the provisions of Order 8 Rule 6 A to Rule 6G of the Code of Civil Procedure confer a statutory right on the defendant to set up counter-claim independent of the claim on the basis of which the plaintiffs have filed civil suit. Relying on the judgment given in the case of Gayathri Women's Welfare Association V/s. Gowramma and another reported in AIR 2011 SC 785 : [2011 ALL SCR 786] and the judgment given in the case of Jag Mohan Chawla and another V/s. Dera Radha Swami Satsang and others reported in AIR 1996 SC 2222 it is submitted that language of Subrule(1) of Rule 6A of Order 8 of the Code of Civil Procedure is clear and enables the defendant to make his claim based on independent cause of action that would be the subject matter of an independent suit and the claim made in the -counter-claim need not be confined to the cause of action of the same nature as the cause of action of the plaintiff and it need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. It is submitted that the cause of action on the basis of which the counter-claim is made, need not arise from or have any nexus with the cause of action of the plaintiff, the only limitation is that the cause of action should arise till the filing of the written statement or till the time fixed for filing the written statement lapses.

9. Shri A.S. Kilor, Advocate for the respondent Nos.9 and 10 has supported the submissions made on behalf of the petitioner on the point that the counter-claim need not relate to the original cause of action on the basis of which the civil suit is filed and the counter-claim can be made on the basis of an independent and different cause of action. The learned Advocate has relied on the judgment given in the case of Jag Mohan Chawla and another V/s. Dera Radha Swami Satsang and others reported in (1996) 4 SCC 699.

10. After considering the pleadings of the parties in the plaint, the written statement and the counter-claim, I find that that the defendant No.1 has made counter-claim against the plaintiffs, and the defendant No.1 is seeking decree against the plaintiffs also. The submissions made on behalf of the plaintiffs that the claim of the defendant No.1 is essentially against the codefendants and, therefore, the defendant No.1 cannot be permitted to make the counter-claim in the civil suit filed by the plaintiffs, cannot be accepted.

11. The submission made on behalf of the plaintiffs that the counter-claim made by the defendant No.1 cannot be permitted as the cause of action on the basis of which the counter-claim is made, is different and is not in respect of the property which is the subject matter of the civil suit, also cannot be accepted in view of the proposition of law laid down in the judgment given in the case of Gayathri Women's Welfare Association V/s. Gowramma and another [2011 ALL SCR 786] (cited supra) and the judgment given in the case of Jag Mohan Chawla and another V/s. Dera Radha Swami Satsang and others (cited supra). The above judgments lay down that the defendant can make counter-claim on the basis of different cause of action and in respect of any claim that would be subject matter of an independent civil suit. The counter-claim made by the defendant need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff and need not necessarily arise from or have any nexus with the cause of action of the plaintiff.

12. The objection raised by the petitioners that the application (Exh. No.86) filed by the plaintiffs could not have been entertained by the trial Court and the counter-claim could not have been excluded as the application was filed after the settlement of issues, though appears to be sustainable in law in view of the provisions of Rule 6C of Order 8 of the Code of Civil Procedure, in the facts of the present case, the objection has to be rejected. It is admitted fact that the plaintiffs filed the written statement to the counter-claim made by the defendant No.1 and in the written statement, the plaintiffs contended that the counter-claim made by the defendant No.1 be excluded. The provisions of Rule 6C of Order 8 of the Code of Civil Procedure cannot be construed to mean that the request made on behalf of the plaintiffs to exclude the counter-claim is required to be made by an application only and if request is made in any other form, it cannot be accepted. The plaintiffs having made the request for excluding the counter-claim much before the settlement of issues, only because application (Exh. No.86) is filed reiterating the request after the settlement of issues, it cannot be said that the plaintiffs lose the right to prove their request.

13. The principal question which is required to be considered is whether the opposition of the plaintiffs to the counter-claim made by the defendant No.1, carries any weightage and the counter-claim has to be excluded though otherwise counter-claim can be permitted. The provisions of Order 8 Rule 6C of the Code of Civil Procedure read as follows:

"6C. 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 order as it thinks fit."

The intention of the Legislature in incorporating Rule 6C of Order 8 of the Code of Civil Procedure is clear and suggests that the request made on behalf of the plaintiff to exclude the counter-claim, has to be given due weightage. It is the cardinal principle in judicial proceedings that the party to the proceedings has the inherent right to oppose any claim made by the other party, even if there is no provision in the statute providing a right to the party to oppose the claim of the other party. Therefore, when Rule 6C is incorporated in Order 8 of the Code of Civil Procedure, it is clear that the Court is bound to consider the request of the plaintiffs. Though the latter part of Rule 6C of Order 8 of the Code of Civil Procedure gives discretion to the Court to pass appropriate orders on the application made by the plaintiffs requesting that the counter-claim be excluded, the discretion will have to be exercised in favour of the plaintiff. The object of Rule 6C of Order 8 of the Code of Civil Procedure appears to be based on the cardinal principle that the plaintiff is dominus litis and it it is the right of the plaintiff to proceed with the civil suit in the manner he feels proper and best suited for proving his case. If the defendant is permitted to make counter-claim, he gets the right to steer the civil suit as per his wishes and in certain situations there may be a conflict between the plaintiff and the defendant on the point as to how the civil suit should proceed.

If the provisions of Rule 6C of Order 8 of the Code of Civil Procedure are not given the above meaning, but are construed to mean that the request of the plaintiff to exclude the counter-claim is immaterial, then the provisions of Rule 6C of Order 8 of the Code of Civil Procedure will be rendered nugatory.

14. In view of the above, I find that the trial Court has properly considered the request of the plaintiffs and has rightly excluded the counter-claim, leaving it to the wisdom of the defendant No.1 to agitate his claim in separate civil suit. I do not find any patent illegality in the impugned order. It cannot be said that the trial Court has committed any error of jurisdiction. I do not see any reason to interfere with the impugned order. The petition is dismissed. In the circumstances, the parties to bear their own costs.

Petition dismissed.