ORDER
1.This revision raises an interesting question of law with regard to the interpretation of Rule 6A of Order 8 of the Code of Civil Procedure. Plaintiff is the petitioner. After dismissal of his suit as not maintainable, the counter-claim filed by the defendants tor eviction of the plaintiff was allowed to proceed which was registered as T.S. No. 12-A of 1979. The plaintiff filed an application on 5-3-1986 invoking the jurisdiction of the Subordinate Judge under Order 8, Rule 60, Code of Civil Procedure, praying to reject the counter-claim for eviction. The Subordinate Judge having dismissed that petition by order dated 13-3-1986, the plaintiff has filed me present revision.
2. The short facts are that the plaintiff filed the suit for declaration of his title, confirmation of possession and permanent injunction against the defendants in respect of a plot of land on 22-6-1979. which was registered as Title Suit No. 12 of 1979. The defendants filed their written statement on 15-10-1979. On 17-4-1980. the plaintiff filed an application for amendment of the plaint and as the amendment was minor in nature, the same was allowed by order dated 20th of April, 1980. The defendants thereafter filed an additional written statement on 17-5-1980 and on the same day filed a counter-claim for eviction of the plaintiff from the suit land and for damages. For the relief contained in the counter-claim full court-fee was paid. On 27th. of August, 1980, the plaintiff filed his written statement/objection to the counterclaim filed by the defendants. On 28-10-1981, the plaintiff filed a petition to withdraw the suit with leave to file a fresh suit. By order dated 30-11-1981, the Trial Judge permitted the plaintiffs suit to be withdrawn with leave to file a fresh suit and it was directed that defendants' counter-claim would proceed as a suit. Against the order dated 30-11-1981, permitting the plaintiff to withdraw the suit with leave to file a fresh suit, the defendants filed a revision and the High Court allowed the said revision and rejected the plaintiffs application under Order 23, Rule I, Code of Civil Procedure, seeking withdrawal of the suit and leave to file a fresh suit. The decision of this Court has since been reported in AIR 1986 Orissa 1) (Khatuna v. Ramsewak Kashi-nath, a partnership firm). On 28-2-1986, the learned Trial Judge came to hold that the plaintiffs suit was not maintainable for want of registration of the partnership firm as it was hit by Section 69 of the Indian Partnership Act. On 5-3-1986, the plaintiff filed an application objecting to the maintainability of the defendants' counter-claim after dismissal of the plaintiffs suit. The said application having been rejected by the impugned order dated 13-3-1986, the present revision has been filed.
3. Mr. Basu, the learned counsel for the plaintiff-petitioner, raises two contentions in assailing the impugned order of the learned Subordinate Judge:--
(i) The cause of action in respect of the counter-claim having arisen before filing of the original written statement, i.e. before 15-10-1979, and the defendants not having made that counter-claim while filing the written statement are not entitled to file the same on 17-5-1980 while filing the additional written statement; and
(ii) The counter-claim for eviction of the plaintiff not being a money claim does not come within the purview of Rule 6A of Order 8, Code of Civil Procedure, and, therefore, the same must be held to be not maintainable.
The learned counsel for the opposite parties, on the other hand, contends that there is no embargo in Rule 6A of Order 8, Code of Civil Procedure, from filing a counter-claim subsequent to the filing of the written statement and the only meaning of the said provision is that the cause of action must have arisen prior to the filing of the written statement. So far as the second submission of Mr. Basu is concerned, the learned counsel for the opposite parties contends that the language of Rule 6A is wide and unambiguous and on giving a plain meaning to the same, no restriction can be imported into the provision, namely a counter-claim could be filed only in respect of a money claim and not otherwise. The rival submissions require a careful analysis of the different provisions of the Civil Procedure Code as well as the relevant decisions cited at the Bar.
4. Before examining the question and the decision relied upon by the learned counsel for the parties, it would be appropriate to extract the provision of Rule 6A of Order 8, Code of Civil Procedure :--
'6A. Counter-claim by defendant.--
(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, claim of the plaintiff, nay 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 counterclaim 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.'
It may be noted that this provision was not there in the Civil Procedure Code of 1908 and was brought by way of amendment by Amending Act of 1976 which was given effect to with effect from 1-2-1977.
5. So far as first submission of Mr. Basu is concerned, it depends upon an interpretation of the expression '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'. Interpreting this expression occurring in Rule 6A of Order 8, Code of Civil Procedure, a' learned single Judge of this Court in the case of Kashi Biswanath Dev v. Paramananda Routrai, AIR 1985 Orissa 260, came to the conclusion that in consideration of the provisions of Rule 6A of Order 8, it was crystal clear that a counter-claim by the defendant could be made while filing the written statement or before the time limited for submission of the written statement had expired and in no case at a later stage. This decision has been followed by another learned single Judge of this Court in the case of Prafulla Kumar Samantaray v. Smt. Ranjita Samantaray, (1987) 63 CLT 337. Relying upon the aforesaid two decisions, Mr. Basu pursues his arguments and contends that the counter-claim cannot be entertained long after filing of the written statement. But both these aforesaid decisions have been overruled by a Bench decision of this Court in the case of Mangulu Pirai v. Prafulla Kumar Singh, AIR 1989 Orissa 50. In fact, the matter is concluded by the decision of the Supreme Court in the case of Mahendra Kumar v. State of Madhya Pradesh, AIR 1987 SC 1396. Their Lordships observed (at p. 1399, AIR 1987 SC) :--
'The next point that remains to be considered is whether Rule 6A(1) of Order VIII, Civil P.C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counterclaim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can 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 has expired, whether such counter claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counterclaim after the filing of the written statement, the counter-claim was not maintainable....'
In view of the aforesaid decision of the Supreme Court, the contention of Mr. Basu, the learned counsel for the petitioner must be rejected and 1 accordingly reject the same.
6. The next point that remains for consideration is whether the defendant is entitled to raise a counter-claim invoking the provision of Order 8, Rule6A, Code of Civil Procedure, only in cases where the dispute is in respect of a money claim or there is no limitation in the same. Mr. Basu for the petitioner contends that a combined effect of reading Order 8, Rules 6A and 6F as well as Order 20, Rule 19 makes it crystal clear that a defendant is not at liberty to raise any dispute in the suit of the plaintiff irrespective of its nature. On the other hand, the provisions are suspectible of the only construction that a counter-claim under the Rules can be made only in such suits in which there is a dispute in respect of a money claim. Since the plaintiffs suit in the present case was for a declaration that he was the licensee of the premises in question and has a right to remain in possession, it was not open for the defendants to make a prayer for eviction by way of a counter-claim. In support of this contention, the learned counsel relies upon a Bench decision of the Patna High Court in the case of Jashwant Singh v. Smt. Darshan Kaur, AIR 1983 Patna 132. Undoubtedly, the aforesaid decision supports Mr. Basu's contention fully. The learned Judges of the Patna High Court have taken the view that Rule 6 of Order 8 enables a defendant to plead set-off in a suit for recovery of money against a defendant. The amended provision Rule 6A confers an additional right to a defendant, in addition to his right of set-off under Rule 6 to make a counter-claim against the plaintiff, provided the cause of action for such counterclaim accrued to the defendant before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering the defence has expired. It was, therefore, held that the counter-claim contemplated under Rule 6A Of Order 8 must be in relation to a money claim and not any other claim. This conclusion was supported with reference to Rule 19 of Order 20. This decision, however, has not been found favour with by the Kerala High Court, as the learned Judge of the Kerala High Court in the case of Pathrose Samual v. Karumban Parameswaran, AIR 1988 Kerala 163 came to hold that there was nothing in Rule 6A limiting such claims to money suits and the proposition that a counter-claim can be made only in suit for money, could not be accepted. The learned Judge dissented from the Patna view, referred to earlier, and relied upon the earlier view of the Kerala High Court in the case of Roman Sukumaran v. Madhavan, AIR 1982 Kerala 263. Rule 6A of Order 8 is clear and unambiguous and does not contain anything from which any restriction can be put to the same. Even when Rule 6A was not there in the statute book and under Rule 6 of Order 8 only a set-off could be claimed, the Supreme Court observed in the case of Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, AIR 1964 SC 11 (at page 17, AIR SC 1964):--
'The question has therefore to be considered on principle as to whether there is anything in law -- statutory or otherwise --which precludes a Court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counterclaim which is to be treated as a cross-suit might not conform to all these requirements, but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a cross-suit is made part of a Written Statementeither by being made an annexure to it or as part and parcel thereof, though described as a counter-claim, there could be no legal objection to the Court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint, Mr. Desai had to concede that in such a case the Court was not prevented from separating the Written Statement proper from what was described as a counter-claim and treating the latter as a cross-suit. If so much is conceded it would then become merely a matter of degree as to whether the counter-claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought and if it did it would seem proper to hold that it would be open to a Court to convert or treat the counter-claim as a plaint in a cross-suit. To hold otherwise would be to erect what in substance is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in Order VIII, Rule 6 or in any other provision of the Code which laid an embargo on a Court adopting such acourse.'
This decision of the Supreme Court has not been brought to the notice of the learned Judges of the Patna High Court in Jashwant Singh's case (AIR 1983 Patna 132), referred to supra. If bereft of Rule 6A, a Court could entertain a counter-claim as a plaint in the cross-suit, then it is difficult for me to hold that by introduction of Rule 6A, Court's power in any way has been restricted. On the other hand, Rule 6A that was brought by way of amendment, confers an additional right on the defendant. In fact, the Law Commission of India in its Twenty-Seventh Report had indicated that in order to avoid multiplicity of proceedings and to dispel doubts that counter-claim cannot be entertained, an express provision should be inserted in the Code of Civil procedure for this purpose. The Bill that was introduced in the Parliament for amending the Civil Procedure Code indicates that the provisions relating to counter-claim having been included in Order 8, a consequential change has been made in the heading of the Order and Rules 6A to 6G are being inserted with a view to making a detailed provision relating to counter-claim. Even Rules 7 and 8 are amended to include counter-claim therein. In the premises, as aforesaid, 1 am in respectful disagreement with the views expressed by the learned Judges of the Patna High Court in Jashwant Singh's case (supra) and I agree with the view expressed by the learned Judges of the Kerala High Court. A Division Bench of the Madhya Pradesh High Court appears to have taken the same view as that of the Kerala High Court, as would appear from, AIR 1977 NOC 219 (Bhagirath Singh v. Ramnath).
In fact, in the present case, the counterclaim that was filed by the defendants has been registered as Title Suit No. 12-A of 1979 and Sub-rule (2) of Rule 6A of Order 8, Civil Procedure Code, clearly states that such counter-claim shall have the same effect as a cross-suit. Consequently, in my opinion, Rule 6A cannot be construed in a limited sense, as has been construed by the learned Judges of the Patna High Court in Jashwant Singh's case and, therefore, the Court can entertain by way of a counter-claim whether the claim is in respect of money or not. The second submission of Mr. Basu accordingly fails.
7, Both the contentions having failed, the Civil Revision fails and is dismissed, but in the circumstances, there will be no order as to costs.