(1.) IN execution of a money decree against two defendants an item of immovable property was sold and purchased by a stranger who took delivery. Thereafter he filed the present suit against the self-same judgment-debtors seeking injunction against trespass concerning the identical property and for realisation of damages for unauthorised plucking of coconuts. The suit was resisted on the contention that though the property sold is another item belonging to the second defendant, plaintiff/ auction purchaser wrongly obtained delivery of the suit property which belongs to the first defendant. Under O. 8 R. 6a of the Code of Civil Procedure first defendant filed a petition raising a counter claim that he must be given delivery of the suit property from the plaintiff on the strength of his title. After raising three additional issues on this contention the Munsiff heard them preliminarily. On the ground that a counter claim could be had only in a money suit the Munsiff held that the counter claim is not maintainable in law. By a separate order the petition under 0. 8 R. 6a was also dismissed. Defendants seek to revise those two orders in these civil revision petitions.
(2.) THE incorrectness of the reasoning of the Munsiff was never in dispute before me. In arriving at the conclusion that the right of a defendant to raise a counter claim under 0. 8 R. 6a is limited by the Code to cases where the dispute is only in respect of a money claim the Munsiff was guided solely by the decision in Jashwant Singh v. Smt. Darshan Kaur (AIR 1983 patna 132 ). THE decision of the Supreme Court in Laxmidas v. Nanabhai (AIR 1964 sc 11) and the decision in Sukumaran v. Madhavan (1982 KLT 376) rendered by a single Judge of this Court following the same, holding that the contention that r. 6a can apply only to suits for recovery of money has to fail, were not brought to the notice of the Munsiff.
(3.) RM and O. 20 R. 19 are also not capable of abridging the scope and ambit of R. 6a of O. 8. Those provisions deal with only cases of judgments and decrees in money claims where set-off or counter claims in terms of money are allowed. That does not mean that in all cases counter claims could only be in terms of money. Such an interpretation will render the conscious difference in the language of R. 6 and 6a nugatory. The wordings 'in a suit' and 'any right or claim in respect of a cause of action accruing to the defendant against the plaintiff' in R. 6a will be rendered meaningless and absurd if such a restricted interpretation is given. So also R. 61) makes it clear that the counter claim can independently proceed even if the suit of the plaintiff is stayed, discontinued or dismissed. That means the counter claim has an independent existence of its own irrespective of the plaint claim.