LAXMIPRIYA PARIDA Vs. SUKANTILATA PARIDA

JUDGEMENT

(1.) THERE being divergent views as to whether the word 'Suit' appearing under Order 8, Rule 6 -A of the Code of Civil Procedure (hereinafter called as 'the Code') is confined only to suits for money or refers to suit of any kind, this case has been referred to a larger Bench by the Hon'ble single Judge of this Court and that is how we are required to answer the question.

(2.) THE defendants in O. S. No. 20 of 1987 in the Court of Munsif, Balasore are the petitioners in this revision challenging the legality of the order dated 23 -7 -1990 of the trial Court rejecting their prayer for counter claim on the ground that the same is not permissible as the plaintiffs by amending the plaint had not introduced any new claim. During the course of hearing of the civil revision before the Hon'ble Single Judge of this Court it was contended on behalf of the plaintiff -opp. parties that the counter claim was rightly disallowed by the Court below as the suit is not a suit for money and according to the plaintiff opp. parties. Order 3, Rule 6 -A of the Code does not permit a counter claim to be filed in a suit other than a suit for money.

(3.) THE Patna High Court in a decision reported in AIR 1983 Patna 132 (Jaswant Singh v. Smt. Darshan Kaur and Ors.) has taker the view that right of the defendant to raise a counter -claim under Rule 6 -A of Order 8 has been limited by the Code only in cases where the dispute is in respect of a money claim. In their Lordships' view Rule 19(1) of Order 20 of the Code lends support to such a construction. The Amended Rule 19(1) of the Code makes a provision regarding preparation of a decree in respect of a suit where a counterclaim has been allowed by the Court. The said view has not been accepted by the High Courts of Kerala, Punjab and Haryana. Their Lordships of Kerala High Court in a decision reported in AIR 1982 Kerala 253 (Raman Sukumaran v. Velayudhan Madhavan) held that Rule 6 -A contemplates counter -claim in any suit. It also expressed that the scheme of the new rule permits the defendant to set up counter claims which arise between the parties and which are cognisable by the Court where the suit is pending. In that case the counsel for the petitioner before his Lordship urged that, the provisions of Order 8, Rule 6 -A can apply only to suits for money and that it cannot be extended to any suit. The learned counsel relied on the provision of Rule 6 -A and Order 20, Rule 19 of the Code in support of his contention that counter -claim cannot be entertained in a suit other than a suit for money His Lordship expressed the view that to accept the petitioner's contention would amount to destroy the very object of the new rule. According to his Lordship, the object is to reduce the pendency of cases so that cause of action and cross -claims similar in nature would be clubbed together and disposed of by a common judgment. The same was reiterated by the same Court in a later decision reported in AIR 1988 Kerala 163 (Pathrose Samual and Anr. v. Karumban Parameswaran). The learned Judge in the said judgment pointed out that the view that a counter -claim can be made only in a suit lor money cannot be accepted as there is nothing in Rule 6 -A limiting such claims to money suits. His Lordship did not accept the interpretation of Patna High Court reported in the aforesaid decision. Disagreeing with the view expressed by Patna High Court and approving that of Kerala High Court, the Punjab and Haryana High Court in a decision reported in AIR 1988 P&H38; (Suman Kumar v. St. Thomas School and Hostel and Ors.) held that a counter -claim can be made by the defendant in any kind of suit, i.e. whether it is a money suit or not. This Court in Civil Revision No. 250/84 disposed of on 26 -9 -1987 took the view that counter -claim need not be confined to money suits only. In a recent decision reported in Vol. 71 (1991) CLT 49 (M/s. Ramsewak Kashinath v. Sarfuddin and Ors.) one of us examined the question and noticing all the aforesaid decisions held that Rule 6 -A as introduced by way of amendment merely clarified the existing right of a defendant to file a counter -claim as was being done prior to the amendment and it cannot be interpreted to restrict the power of the Court in any way.