OBERLINO CIRILO SANCHES Vs. MOMENTO VAZ

JUDGEMENT

(1.) Heard. Rule. By consent, the Rule is made returnable forthwith. Mr. Fernandes waives service for the respondents. The petitioners challenge the order dated 30-7-2005 passed in Regular Civil Suit No. 21/ 2001/d by the Civil Judge, Senior Division, at vasco da Gama. By the impugned order, the trial Court has allowed the application filed by the respondents under Order VIII, Rule 6-C of c. P. C. for exclusion of the counter claim which was filed by the petitioners. The exclusion of the counterclaim has been ordered on the 'ground that the petitioners have sought to add new parties and the pleadings in the plaint disclose a new cause of action and, therefore, the same is held to be not permissible in the form of the counter claim and therefore, the counter claim was ordered to be excluded. While assailing the impugned order, the learned advocate for the petitioners referring to Rules 15 onwards of Order VIII of C. P. C. has submitted that the Court below totally ignored the provisions comprised in those Rules which do not permit exclusion of the counter claim merely on the ground of addition of new parties or on the ground that the counter claim discloses a new cause of action.

(2.) On the other hand, 'the learned counsel for the respondents has submitted that the counter claim has been rightly excluded in exercise of power under Order VIII, Rule 6-C and, therefore, no fault can be found with the impugned order.

(3.) The provisions relating to counter claim comprised under Rule 6a onwards in order VIII apparently disclose that a counter claim can be filed in relation to a cause of action accrued i n favour of the defendant either before or after the filing of the suit. A counter claim can obviously refer to a cause of action different from the one arisen in favour of the plaintiff for filing the suit and being so, merely because new cause of action is revealed from the pleadings in the counter claim, it cannot be excluded, unless the trial Court comes to a clear finding that the pleadings sought to be introduced in that regard would either result in embarrassing the fair trial of the case or it would warrant an independent suit in relation to the matter included in the counter claim.