RAMAN SUKUMARAN Vs. VELAYUDHAN MADHAVAN

JUDGEMENT

(1.) The plaintiff in O.S. No. 288 of 1978 of the Munsiff's Court, Haripad, is the revision petitioner. The suit was for an injunction to restrain the defendant from trespassing into the plaint schedule property and tampering with the fences constructed by the plaintiff. The property in the plaint schedule was part of a bigger item, jointly owned by the defendant and his brother. There was a partition between them. The plaintiff's wife is the assignee from the defendant's brother and the suit was filed by the husband on behalf of the wife. In the suit the defendant respondent filed a counter claim under O.8 R.6-A CPC. The counter claim related to A schedule (1) therein, which formed a part of the property allotted to him in partition and to which he was entitled to be in possession. According to him the plaintiff trespassed into that portion and put up fences. In the counter claim he sought for a declaration of his title to the property and recovery of possession of the same from the plaintiff. This counter claim was resisted by the plaintiff on various grounds, principally on the ground that such a counter claim under O.8 R.6-A was not entertainable. The court below held that the counter claim was in order and rejected the plaintiff's objection. Hence this revision.

(2.) The learned counsel for the petitioner submits before me that the provisions of O.8 R.6-A can apply only in suits for money and that it cannot be extended to any suit. He first invited me to the opening words in O.8 R.6(1) CPC which read "where in a suit for recovery of money the defendant claims to set off ........." to state that it admits of no doubt that this rule relates to money suits and money suits alone. Then he read R.6A and said that the expression therein ''in addition ......" indicated that this rule also applied only to money suits. His submission is that what this rule permits a defendant is not only to claim a set off but to put forward a counter claim if any amount is due from the plaintiff, in excess of the plaint claim. But that can only be in a suit for money, and in no other suits. He sought further support for this contention by quoting R.6-F which reads:

(3.) The learned counsel for the respondent met this plea saying that even before the introduction of R.6-A in the CPC. by Act 104 of 1976, courts had recognised the right in the defendants to claim a set off in suits other than money suits. Now a specific provision has been introduced to make the position clear.