KSFE LTD Vs. PURUSHOTHAMA RAO

JUDGEMENT

(1.) Defendant is the appellant. Plaintiff, a subscriber of a Chitty conducted by the defendant prized the kuri on 11-5-1977 for Rs. 6,300/-, Plaintiff's case is that the prized amount was not paid by the defendant that he had remitted Rs. 2,100/- towards 14 instalments and that despite repeated demands and lawyer notice the defendant did not pay the amount due to him. Defendant filed written statement admitting that the plaintiff was a subscriber to the Chitty and that he bid the same as stated in the plaint. It is contended that he did not produce sufficient security as per the terms of the chitty and so defendant was forced to deposit the prized amount in the District Treasury, Ernakulam on 8-7-1977. According to the defendant, the plaintiff is not entitled to recover the full amount and that the defendant is entitled to recover full amount of future instalments after deducting the 14 instalments remitted by the plaintiff. Defendant filed counter claim to the effect that the plaintiff having defaulted future subscriptions is not entitled to recover the amount claimed in the suit and that defendant is entitled to a decree for Rs. 600/- from him.

(2.) The learned Munsiff rejected the defendant's contention that the plaintiff failed to furnish security for the prized amount. The documentary evidence in the case shows that the plaintiff was pressing his contentions before the defendant for the payment of the prized amount from the date of bidding the chitty in 1977. Exts. A2, A5 and A6 are letters addressed to the plaintiff by the defendant. In Exts. A5 and A6 defendant has no case that security offered by the plaintiff was found insufficient. Learned Munsiff held that such a contention was taken for the first time in Ext. A2 letter. The learned Sub Judge has agreed with the aforesaid finding of the Munsiff. Courts below held that the evidence both oral and documentary disproved the contention of the defendant that the prized amount was not given to the plaintiff as he failed to furnish proper security. The said findings of fact cannot be interfered by this Court.

(3.) Learned counsel for the defendant next contended that plaintiff did not file any objection to the counter claim of the defendant and hence it should have been allowed by the Trial Court. Counsel submitted that failure to give a reply to the counter claim by the plaintiff is a virtual admission of the same and hence the Trial Court was bound to allow it. Reference is made to O.8 R.6E of the C. P. C. O.8 R.6E provides that if the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter claim made against him, or make such order in relation to the counter claim as it thinks fit. O.8 R.6C enables the plaintiff to raise a contention that the counter claim made by the defendant is not the answer to the suit and the defendant has to institute an independent suit for the relief he wants. It should be done before issues are settled. When the suit claim is considered along with the counter claim of the defendant, failure on the part of the plaintiff in replying to the counter claim by itself cannot be taken as a ground to allow the same especially when the averment in the plaint sufficiency clearly answer the material points mooted by the defendant in the counter claim. O.8 R.6E is not couched in such a manner that the Court has no option but to allow the counter claim of the defendant when no reply is given by the plaintiff. It only says that the Court may pronounce the judgment against the plaintiff in relation to the counter claim or make such order as it deems fit. In view of the counter claim, the Court has necessarily to consider it also when the suit claim is considered. Though it is open to the Court to pronounce the judgment against the plaintiff in relation to the counterclaim or make such order in relation to it as it deems proper and fit, pleadings in the plaint and the evidence in the case cannot be ignored merely on the ground that the plaintiff has not given a reply to the counter claim.