Manikchand Fulchand Katariya Vs. Lalchand Harakchand Katariya - Court Judgment

1. There arises a twin question of law in this petition. The first question is whether the counter claim under 0.8, R. 6A of Code of Civil Procedure (for short,hereinafter, Code) is limited to money suit only. The second question is whether by way of counter-claim a decree for possession in favour of defendant in a suit filed by the plaintiff for injunction can be legally tenable.

2. In order to appreciate these questions it will be convenient to set out the material facts which have given rise to the controversy between the parties.

3. The property bearing city survey Nos. 851 and 851/A situated at Sangamner, District Ahmednagar was originally owned by joint Hindu family comprising of two brothers, namely, Fulchand and Harak-chand. The petitioner is the son of Fulchand whereas, the respondent is the son of Harak-chand. The case of the petitioner is that while the family was joint, there was some dispute and, therefore, he, for convenience, started residing separately in order that he should have his own business independently. In the year 1945 he was given the suit property with a a right to use latrine situated at the Northern side. Since then he is in possession of the suit property. The petitioner started his own business of clothes in the suit property. It is further case of the petitioner that in the year 1964, the petitioner's father and the respondent made a partition in the family property but it was without consent and knowledge of the petitioner. According to the petitioner that partition was affected with a view to deprive him from his right, title and interest in the suit property. The suit property was, however, allotted to the share of the respondent. Thereafter, the respondent filed a criminal case against the petitioner with ulterior motive to take possession of the suit property. The criminal Court, however, directed the parties to establish his right in the Civil Court.

4. That is why the petitioner filed Regular Civil Suit No. 75/1977 for permanent injunction restraining the respondent from taking possession of the property and/or from disturbing his possession in any manner. The respondent contested the suit on various grounds. He also filed written statement and set up a counter-claim for restoration of possession of the property. The trial Court dismissed the petitioner's suit but allowed thecounter-claim filed by the respondent and passed the decree for possession against the petitioner on 7-12-1981. That decree which was passed on the counter-claim of the respondent was challenged by the petitioner in Regular Appeal No. 3/1982 in the District Court, but his appeal was dismissed on 1-10.-1982. The petitioner also filed Second Appeal No. 265/1983 but the same was summarily dismissed.

5. The second ground of litigation between the parties requires mention. After termination of proceeding in R. C. S. No. 75/1977 as aforesaid, the respondent filed Regular Darkhast No. 35/1983 for possession of the property. The petitioner raised objections to the execution. It was alleged that he was not in possession of the property but one Gulabbai was in possession. It may be stated that Gulabbai is the wife of the petitioner. The respondent, therefore, impleaded her as a party in the execution proceeding and applied the court to execute the decree by removing the resistance of third party, namely, Gulabbai. The executing Court held enquiry in respect of the claim of obstructionist-Gulabbai. The executing Court has held that Gulabbai failed to prove that she was claiming her independent right over the property and by an order dt. 20-1-1986, directed the execution to proceed. That order dated 20-1-1986 was challenged in R.C.A. No. 31/1987 but the appeal was dismissed on 30-9-1988. The obstructionist-Gulabbai filed Second Appeal No. 265/1988 but the same was also dismissed on 1-11-1988.

6. On termination of the aforesaid proceeding, the petitioner filed in present petition under Article 227 of the Constitution of India on 19-6-1989 to challenge the execution proceeding in R.C.S. No. 75/1977 solely on the ground that the decree passed in R.C.S. No. 75/1977 was without jurisdiction and it was a nullity and hence it was un-executable. It has been submitted that the decree was passed based upon a counter-claim but no counter-claim is permissible in any suit except the money suit. Therefore, the decree, which was sought to be executed by the respondent was un-executable in law. The petitioner,therefore, seeks to quash and set aside the order dt. 16-6-1989 passed by the executing Court below Exh. 97, in R.D. No. 34/1984, in execution of decree in R.C.S. No. 75/ 77 and for consequential relief.

7. It is not out of place to mention that the present petition appears to have been filed on account of a decision in case reported in 1988. Mah LR 1488 Chandrakant v. Manikrao in which a view is taken that a counter claim can be allowed only in money suit and not in a suit for ownership and possession.

8. The civil revision application, however, arises, out of an order dt. 22-6-1993 rejecting the petitioner's application Exhibit 23 in R.C.S. No. 193/1989 for stay of the suit by reason of pendency of a writ petition. That suit was filed by the petitioner, challenging the warrant of possession issued in execution proceeding.

9. There involves a common question of law as herein above set out and, therefore, both these matters are decided by a common judgment.

10. Shri Kasliwal learned counsel for the respondent has raised a preliminary contention that the writ petition is not maintainable on principles of analogous res-judicata. It has been submitted that the controversy between the parties has been settled long back in earlier proceeding in R.C.S. No. 75/1977 and merely because provisions of Order VIII, Rule 6A of the Code of Civil Procedure (for short, the Code) were interpreted differently in a later case, that by itself is no ground to entertain the petition. Shri Shelke, learned counsel for the petitioner has, . however, submitted that there was no adjudication on the questions now raised in this writ petition in earlier proceeding and, therefore, decisions in earlier proceeding would not operate as res-judicata. The learned counsel has further contended that if the decree passed in earlier suit was without jurisdiction it would be a nullity and its invalidity could be set up whenever and where-ever it is sought to be imposed or relied upon. Before I consider the aforesaid preliminary objection of the learned counsel for the respondent to the maintainability of the petition, it is desirable to deal withthe twin question of law, which has beenargued in this writ petition.

11. Shri Shelke, learned counsel for the petitioner has urged that under Order VIII, Rule 6A of the Code, the right of the defendant to raise a counter claim is limited only in cases where the dispute is in respect of a money claim. A reference is made to the provisions under Order VIII, Rule 6A and Order XX, Rule 19(1) of the Code to support that there should be a money claim when set off is allowed under Rule 6A of Order VIII of the Code. The learned counsel for the petitioner has strongly relied on the view expressed by the learned single Judges of this Court and Patna High Court in following cases.

(i) AIR 1993 Pat 132,

(ii) : AIR1985Bom426 , and

(iii) 1988 MLR 1488 : AIR 1988 Bom 88.

12. On the other hand Shri Kasliwal, learned counsel for the respondent has submitted that the majority view of various High Courts in India is contrary to the view taken in cases which have been relied on by the learned counsel for the petitioner. It has been submitted that on true interpretation on the scope of Order VIII, Rule 6A of the Code, the majority view is that the counter claim is not limited to a money suit only. Reliance has been placed on following decisions;

(i) : AIR1988Ker163 , (ii) , (iii) : AIR1991Ori51 , and

(iv) : AIR1992Bom422 .

13. Now, in order to appreciate the rival contentions of the learned counsel for the parties, it will be appropriate to quote relevant provisions of Order VIII, Rule 6A of the Code, which reads as under:

'6A. Counter-claim by defendant.

(1) A defendant in a suit may, in addition tohis 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 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.'

On a plaint reading or Rule 6A of Order VIII of the Code, it is quite clear that a defendant in a suit may set up by way of counter-claim against the claim of the plaintiff any right or claim in respect to a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limit for delivery of his defence has expired, where such counterclaim is in nature of a claim for damages or not. It is, however, subject to the proviso, namely; that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. It is also clear from the said Rule that such counter claim shall have the same effect as a cross suit to as to enable the court to pronounce the final judgment in the suit, both on the original claim and the counter-claim. In other words, counter claim shall be treated as plaint and governed by rules applicable to the plaint. This provision of Rule 6A has been inserted by amendment Act, 1976, with effect from 1-2-1977.

14. Scope of Rule 6A as hereinabove set-out has been discussed by Mulla on Civil Procedure Code, XIV Edition. The Author observes:

'.......The wide words in which Rule 6A iscouched shows that it can be brought in respect of any claim that could be the subject of an independent suit. It is no longer confined to money claims or to causes of action of the same nature as the original action and it need not relate to or be connected with the original cause of action or matter. The words 'any right or claim in respect of a cause of action accruing to the defendant' shows that the. cause of action from which the counter claim arises need not arise from or have any nexus with the cause of action pleaded by the plaintiff. A claim founded in tort may be opposed by one founded on contract. Further, the defendant by his counter claim may ask for any relief, e.g. a declaration, relief against forfeiture, injunction, receiver, specific performance, an account, payment of a money claim or damages. The words 'both before or after the filing of the suit' in Rule 6A shows that a defendant may set up a cause of action which has accrued since the suit was filed.'

The very object of Rule 6A is to treat a counter-claim an independent suit to be heard together with the plaintiff's suit to enable the court to pronounce final judgment. That means a counter claim is in its nature a cross-suit. The view expressed by Mulla on the scope of Rule 6A has been virtually accepted by the learned Judges of various High Courts in decisions upon which reliance is placed by the learned counsel for the respondent.

15. Therefore, it is not possible to accept the view that the counter-claim can be allowed only in money suit and not in any other suit. Neither Rule 61 of Order VIII of Rule 19(1) of Order XX are capable of abridging the scope and ambit of Rule 6 of the Order VIII. These provisions deal with only in cases of judgment and decrees of money claim where set off or counter claim in terms of money are allowed. That, however, does not mean that in all cases the counter-claim could only be in terms of money. Such an interpretation will render the express provisions of Rule 6A nugatory.

16. Now, I will deal with the cases cited by the learned counsel for the parties. In the case of Chandrakant v. Manikrao (1988) MLR 1488with the case under Rule 6 of Order VIII, the Court has an occasion to consider Rule 6A on identical facts of the case and has held that the counter claim can be allowed only in money suit and not in a suit for ownership and possession. In the case of Jaswant Singh v. Smt. Darshan Kaur, (A1R suit for declaration and'Injunction based on agreement between the parties whereby the petitioner was allowed to' continue in possession for a period of five years after which he had agreed to vacate the premises in question, the defendant disputed the nature of the agreement as contended by the petitioner and his written statement was treated as a counter-claim for eviction of the petitioner. The trial Court passed the decree for eviction of the petitioner on the basis of the counter-claim filed by the defendant. That order was set-aside by the High Court inter alia holding that it was not open to the defendant to make prayer for eviction of the petitioner by way of counter-claim, inasmuch as the right of defendant to raise counterclaim has been limited by the Court in cases where dispute is in respect of a money claim. On the other hand, in the case of PathroseSamuel v. Karumban Parameswaran : AIR1988Ker163 a contrary view is taken. In a suit for injunction against a trespasser and for realisation of damages, one of the defendants filed a petition raising a counter-claim for possession on the strength of his own title. The trial court rejected the petition on the ground that claim was not maintainable in law. The High Court, disagreeing with the view taken in Patna case (cited supra) held that there is definitely some difference between 'set off' and 'counter-claim'. Set-off is also in a sense a counter-claim against the plaintiff but in essence it is a form of defence in which the defendant while acknowledging the justice of the plaintiff's claim sets up a demand of his own to counter-balance it either wholly or in part. Counter-claim is substantially a counter suit. It is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. It need not be an action or even analogous thereto even though the claim has to be one entertain able by the Court. According to the dictionary meaning,it is a claim made to offset another claim especially in law, whereas set-off is something that counter-balances or makes up for something else. The proposition that counter-claim can be made only in suit for money cannot be accepted.

17. Similar view is taken in the case of Suman Kumar v. Thomas School , That was a suit for permanent injunction filed by a Co-operative Society through its Secretary in which counter-claim was made by the defendant on the withdrawal of the suit by the plaintiff on the ground that it was barred under .Section 6 of the Societies Registration Act, 1860. It was held that the claim of the defendant to convert his counterclaim into point could not he dismissed on the ground that it will have to be dismissed on the same grounds on which the suit was withdrawn. It was held that the defendant can raise a counter-claim in any kind of the suit, whether a money suit or not. There is consistent view taken in another case, namely, M/s/ Ramsewak v. Sarfuddin : AIR1991Ori51 . It was a suit for declaration ana confirmation of possession and for permanent injunction against the defendant in respect of the plot of land. Defendant filed a counter-claim for eviction of the plaintiff from the suit plot and for damages. The trial Court held that the suit was not maintainable for want of registration of partnership as it was hit by Section 69 of the Indian Partner-ship Act. The objection was also raised to the maintainability of counter-claim of the defendant after dismissal of the suit. The trial Court upheld the objection and rejected the counter-claim on the ground that the counterclaim for eviction of the plaintiff, not being a money claim does not fall within the purview of Order VIII. The High Court held that the counter-claim was maintainable.

18. It will be seen from the decided cases that the majority view is in favour that theamended provisions of Rule 6A confers additional right to a defendant in addition to his right of set off under Rule 6A to make a counter-claim against the plaintiff provided the counter-claim satisfies the conditions of four corners of Rule 6A. Keeping in view the very object of the amended provisions of Rule 6A it is not possible to agree with the view that the counter-claim must necessarily be a money claim. Rule 6A cannot be construed or interpreted in a limited sense because as Mulla observes, it is clear from the words 'a claim for damages or not' in Rule 6A clearly shows that it can be brought in respect of any claim that could be the subject of an independent suit. It no longer confines to money claim or to causes or action of the same nature as the original action and it nothing relate to or be connected with the original cause of action for matter. The only condition is that the claim should not be beyond pecuniary jurisdiction of the Court. In the circumstances, I am respectfully in disagreement with the view expressed by the learned single Judges in cases cited supra and which have been relied upon by the learned counsel for the petitioner. I agree with the view expressed by the learned Judges in cases upon which reliance is placed by the learned counsel for the respondent. It, therefore, follows that the counter-claim under 0.8, R. 6A is not limited to money suit only and by way of counter-claim a decree for possession in favour of the defendant in a suit filed by the plaintiff for injunction can legally be tenable. In the result, the writ petition fails.

19. Now, coming to the preliminary contention of the learned counsel for the petitioner, although it is not necessary to consider the same in the view that I take, it can be said that the petitioner as well as the third party have raised the very contention that the decree was not executable on the ground that it was a nullity because, it was passed on basis of counter-claim. 1 have already observed that the writ petition came to be filed on the basis of interpretation of provisions of O. 8, R.6A in case of Chandrakant v. Manikrao 1988 M LR 1488 (cited supra). The question arises whether the petitioner is entitled to reopen the controversy which has been closedand settled long back on principle of analogous res judicata. In my opinion, it will not be permissible to a flow the petitioner to raise similar contention merely because the provision of 0.8, R. 6A was interpreted differently in a case subsequent to the termination of the earlier proceeding. The principle of analogous res judicata is clearly applicable in this writ petition. A reference may be made to the decision in case of Sheikh Gafoor v. State of Maharashtra 1993 MLJ 1078.

20. There is hardly any merit in civil revision application, in the view that the petitioner fails to show that the decree passed in favour of the respondent in the counterclaim was a nullity. The revision application is, therefore, liable to he rejected.

21. In the result, the writ petition is dismissed. Rule is discharged. The revision application is also rejected. Rule is discharged. There shall, however, be no order as to costs.

22. Shri Shelke, learned counsel for the petitioner seeks stay of the order for a period of eight weeks to which Shri Kasliwal, learned counsel for the respondent objects. Considering the nature of the matter, stay is granted for four weeks.

23. Order accordingly.