JAGDISH PANDEY Vs. DAYA SHANKER PANDEY

JUDGEMENT

(1.) POONAM Srivastava, J. Head Sri Anand Swaroop Srivastava and Girish Chandra Yadav for the petitioners.

(2.) THE present writ petition has been filed challenging the order dated 8-7-2004 passed by Additional District Judge Court No. 4, Azamgarh in Civil Revision No. 5 of 2003 and order dated 3-1-2004 passed by Civil Judge (Junior Division) City, Azamgarh in Suit No. 361 of 1985. THE petitioners/plaintiffs filed a suit for permanent injunction restraining the defendants from making any construction or obstructing flow of Nali over the land in question. THE written statement was filed by the defendants. Subsequently counter-claim was filed on 9-8-1989. An amendment application was filed for amending the counter- claim on 31-5-1996 which was allowed. Subsequently another amendment application was filed on 31- 1-2003 which was numbered as 175 Ka-2 for amending the counter-claim. THE trial Court was of the view that the nature of the suit will not be altered and as such the amendment application was allowed. THE petitioner filed a Civil Revision challenging the order dated 31-1-2003 which has also been dismissed. Both the orders have been challenged in this writ petition.

(3.) THE provisions of Order VIII, Rule 6-A CPC cannot be construed in a limited sense. THE contention of the learned Counsel for the petitioner cannot be accepted that the counter-claim is admissible only in a money suit. Several High Courts have ruled that Rule 6a is not limited to money suit alone. It is only Patna High Court in Jaswant Singh v. Smt. Darshan Kaur & Ors. , AIR 1983 Patna 132, has given a contrary finding that the right of a defendant to raise a counter-claim under Rule 6-A of Order VIII CPC has been limited by the Code only to cases where the dispute is in respect of money claim. This view has been dissented by a number of High Courts. Expressing the contrary view in the case of Ram Sewak v. Sarfuddin, AIR 1991 Orissa 51, it has been ruled that the amended provision of Rule 6-A confers an additional right to a defendant, in addition to his right of set-off under Rule 6 to make a counter-claim against the plaintiff. THE decision of Orissa High Court was based on a decision of the apex Court in the case of Laxmi Dass Daya Bhai Kabrawala v. Nana Bhai Chunnni Lal Kabrawala, AIR 1964 SC 11. THE apex Court even prior to the amendment of 1976 has held as under: "the question has, therefore, to be considered on principle as to whether there is anything in law- statutory or otherwise-which precludes a Court from treating a counter-claim as a plaint in a cross-suit. We are unable to see any. No doubt, the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counter-claim which is to be treated as a cross-suit might not conform to all these requirements, but this by itself is not sufficient to deny to the Court the power and the jurisdiction to read and construe the pleadings in a reasonable manner. If, for instance, what is really a plaint in a cross-suit is made part of a Written Statement either by being made an annexure to it or as part and parcel thereof, described as a counter-claim, there could be no legal objection to the Court treating the same a a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint. Mr. Desai had to concede that in such a case the Court was not prevented from separating the Written Statement proper from what was described as a counter-claim and treating the latter as a cross-suit. If so much is conceded it would then become merely a matter of degree as to whether the counter-claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought and if it did it would seem proper to hold that it would be open to a Court to convert or treat the counter-claim as a plaint in a cross-suit. To hold otherwise would be to erect what in substance is a mere defect in the form of pleading into an instrument for denying what justice manifestly demands. We need only add that it was not suggested that there was anything in Order VIII, Rule 6 or in any other provision of the Code which laid an embargo on a Court adopting such a course. "