PATHROSE SAMUAL Vs. KARUMBAN

JUDGEMENT

(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 O.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 O.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.) 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 counterbalance it either wholly or in part. Written statement containing particulars of the debt sought to be set off has also the same effect as a plaint in a cross suit. The underlying policy is to settle all disputes between the plaintiff and the defendant at one time. The conditions to be satisfied before a defendant's claim to set off can be entertained by the Court are (1) The suit must be one to recover money, (2) The cross claim sought to be set off must be an ascertained sum of money, (3) The sum must be such as could be legally recoverable by the defendant from the plaintiff, (4) The claim should not exceed the pecuniary limit of the jurisdiction of the court, and (5) In respect of both claims the parties should fill the same character. Counter claim is substantially a cross 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 for the same nature as the original action or even analogous thereto even though the claim has to be one entertainable 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.