MADAN GOPAL Vs. RAJA GOPAL SINGH

JUDGEMENT

(1.) THIS is a defendant's revision application against an order of the Senior Civil Judge, Jodhpur, refusing to try a counterclaim on the ground that it did not fall under Order 8, Rule 6 of the Code of Civil Procedure. The application has been contested on behalf of the plaintiff.

(2.) THE plaintiff instituted the present suit for the recovery of possession over a house and for mesne profits for the same property on the allegation that the defendant is his licensee that the licence was revoked and he was asked to deliver possession over the property but he failed to do so. THE defendant contested that suit. His case is that he is the tenant of the property in suit and not a licensee. Further he has alleged that there were money dealings between the parties, that there was a mutual open and current account running, that there was an agreement that the rent of the property in suit will be adjusted towards this account and that a sum of Rs. 4402. 3. 9 was due to him from the plaintiff on the date of the suit. THE defendant claimed a decree for this amount and paid court-fee on the written statement as if it were a plaint in a suit for the recovery of Rs. 4,402. 3. 9. On the pleadings of the parties the learned Senior Civil Judge framed the following issues: - (1) Was the defendant allowed to reside in the suit property by Raja Hari Singh without any rent due to his relations with him? or Was the defendant given the suit property on a rent of Rs. 25/- per month by Raja Hari Singh, and has the same to be adjusted against conveyance charges as alleged by the defendant? (2) If finding on issue No. 1 is in favour of the plaintiff, then what is the reasonable rental value of the suit property? (3) Was there any mutual open and current account between the defendant and the present plaintiff? (4) Is the claim preferred by the defendant within time? (5) If there was any mutual open and current account between the parties, then what is the amount due to the defendant from the plaintiff? (6) Can the counter claim preferred by the defendant considered in this suit? (7) Did the plaintiff authorise the defendant to remain in the property on a monthly rent of Rs. 25/-and did the plaintiff further authorise the defendant to adjust the sum of Rs. 25/- towards the amount said to be due from him? (8) Is the notice given by the plaintiff valid? Can the defendant resist the suit on this ground? (9) Did the defendant do any work for the plaintiff? If so, from which date to which? (10) To What relief is the plaintiff entitled? Issue No. 6 was tried as a preliminary issue and was decided against the defendant. THE grounds of decision were - (1) THE present suit by the plaintiff is not a suit for recovery of money within the meaning of Order 8 Rule 6. It is substantially a suit for recovery of immovable property to which the relief of mesne profits has been joined under the provisions of Order 2 Rule 4. (2) THE provision contained in Order 2 Rule 4 shows that it is the "policy of law that claims with respect to immovable property should be speedily disposed of and other claims should not be allowed to be joined with it as doing so is bound to delay the trial of the suit. If the counter claim of the defendant is tried along with the claim of the plaintiff the suit for recovery of immovable property would be delayed. (3) Although it is permissible for the court to try a counterclaim not falling under Order 8 Rule 6 this discretion can only be exercised where the claim and counterclaim are so well connected as to form part of the same transaction or where it would be hard to drive the defendant to a separate suit and such considerations are not applicable to the present case.

(3.) THE preliminary objection has therefore no force. In the result the revision application is allowed, the order of the learned Civil Judge dated 5th April, 1961 is set aside and he is directed to adjudicate upon the counterclaim put forward by the defendant as it falls under Order 8, R. 6. Parties shall bear their own costs of this revision application.