RAMDULARI Vs. VIRENDRA SINGH

JUDGEMENT

(1.) The suit property is a part of a building. Plaintiffs filed the suit for recovery of possession with mesne profits. THEy are widow and children of late Amarsingh. Virendra, the only brother of Amarsingh is the defendant. THEre is no dispute that the building originally belonged to defendant's grandfather Raghuvar Dayal. According to the plaintiffs, there was a partition amongst the surviving members of the family, namely, Amarsingh, Virendra and their uncle Chhoteylal and the part of the building shown in the plaint has been allotted to the share of Amarsingh. THE defendant, in his written statement, denied the peal of partition and exclusive right claimed by the plaintiffs and as a counter -claim demanded partition of the entire house and allotment of his 1/3rd share to him. This was done under Rule 6 -A of Order 8 C.P.C. Plaintiffs thereupon filed an application under Order 8 Rule 6 -C pleading that the counter -claim ought not to be disposed of by way of counter -claim but in an independent suit and praying for an order that the counter -claim be excluded. THE dismissal of the application has led to this revision petition.

(2.) The provisions regarding counter -claim have been incorporated in the Code of Civil Procedure by Amending Act No. 104/76. Rule 6 of Order 8 relates to a set -off but procedure of counter claim has been followed in Courts in earstwhile British India (see: T.K. V.S. Vidyapoomachary Sons v. M.R. Krisnamachary, 1983 AIR(Mad) 291, and also Laxmidas v. Nanabhai, 1964 AIR(SC) 11). Since counter -claim is now referable to statutory provision, it is necessary to appreciate the statutory scheme in order to decide whether the impugned order is erroneous or not. Rule 6 -A deals with the counter -claim by the defendant. It enables the defendant, in addition to his right of pleading a set -off under Rule 6, set up, by way of counter -claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit. THE Court may pronounce a final judgment in the same suit, both on the original claim and on the counter -claim. THE plaintiff M.P. may file a written statement in answer to the counter -claim. THE counter -claim shall be treated as a plaint and governed by the rules applicable to the plaints. Rule 6 -B indicates in what manner a counter -claim is to be stated. Rule 6 -C deals with exclusion of counter -claim. Where a defendant sets up a counter -claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter -claim but in an independent suit, he may at any time before issues are settled in relation to the counter -claim, apply to the Court for an order that the counter -claim may be excluded and the Court may, on the hearing of such an application make such an order as it thinks fit. According to Rule 6 -0, the counter -claim may proceed even though the suit is stayed or discontinued or dismissed. Rule 6 -E deals with default of plaintiff to reply to counter -claim. 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. Rule 6 -G states that the rules shall apply to a written statement filed in answer to a counter -claim.

(3.) The significant part of Rule 6 -A is that a defendant may set -up a counterclaim against a claim of the plaintiff and the counter -claim is based on any right or claim in respect of cause of action accruing to the defendant against the plaintiff. Thus, counter -claim is made against the claim of the plaintiff and the cause of action must be accrued to the defendant against the plaintiff. In other words, there must be an identity of the partition in so far as the claim is concerned. If the defendant has an independent cause of action against the plaintiff, it as open to him to make a counter -claim against the plaintiff. If the cause of action is against a third party or against a plaintiff and the third party, it will not be attracted by Rule 6 -A and the counter -claim will be impermissible.