Raman Sukumaran v. Velayudhan Madhavan .

1. The plaintiff in O.S No. 288 of 1978 of the Munsiff's Court, Haripad, is the revision petitioner. The suit was for an injunction to restrain the defendant from trespassing into the plaint schedule property and tampering with the Fences constructed by the plaintiff. The property in the plaint schedule was part of a bigger item, (owned) jointly by the defendant and his brother. There was a partition between them. The plaintiff's wife is the assignee from the defendant's brother and the suit was filed by the husband on behalf of the wife. In the suit the defendant-respondent filed a counter-claim under Order VIII, Rule 6-A, C.P.C The counter claim related to A schedule (1) therein, which formed a part of the property allotted to him in partition and to which he was entitled to be in possession. According to him the plaintiff trespassed into that portion and put up fences. In the counter-claim he sought for a declaration of his title to the property and recovery of possession of the same from the plaintiff. This counter-claim was resisted by the plaintiff on various grounds, principally on the ground that such a counter-claim under O. VIII, R. 6-A was not entertainable. The Court below held that the counter claim was in order and rejected the plaintiff's objection. Hence this revision.

2. The learned counsel for the petitioner submits before me that the provisions of O. VIII, R. 6-A can apply only in suits for money and that it cannot be extended to any suit. He first invited me to the opening words in O. VIII, R. 6(1), C.P.C which read “where in a suit for recovery of money the defendant claims to set off .. .. … ..” to state that it admits of no doubt that this rule relates to money suits and money suits alone. Then he read R. 6-A and said that the expression therein “in addition .. … ..” indicated that this rule also applied only to money suits. His submission is that, what this rule permits a defendant is not only to claim a set-off but to put forward a counterclaim if any amount is due from the plaintiff, in excess of the plaint claim. But that can only be in a suit for money, and in no other suits. He sought further support for this contention by quoting Rule 6-F which reads:

“6-F. Relief to defendant where counterclaim succeeds.— Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.”

The submission made is that the expression “any balance is found due to the plaintiff or the defendant” also indicates that R. 6-A deals with only set off and counter-claims in money suits. He also invited my attention to O. XX, R. 19 which reads as follows:

“Decree when set off or counter-claim is allowed:— (1) Where the defendant has been allowed a set-off or counter-claim against the claim of the plaintiff the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

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to contend that this sub-rule also denotes that the set off or counter-claim can relate only in suits for money.

3. The learned counsel for the respondent met this plea saying that even before the introduction of Rule 6-A in the C.P.C by Act 104 of 1976, Courts had recognised the right in the defendants to claim a set off in suits other than money suits. Now a specific provision has been introduced to make the position clear.

4. I shall consider the rival contentions presently. There is a clear distinction between set-off and counter-claim. Before the introduction of Rule 6-A, the defendant had a statutory defence of set-off. I find it difficult to accept the contention that a counterclaim can be made only in a suit for money. Instances are not rare even before Rule 6-A came into vogue where counter-claims were put forward in suits other than money suits. Now specific provisions are made. Rules 6-A to 6-G deal with them. Rule 6-F deals with cases where Court finds a balance either in favour of the plaintiff or the defendant. The effect of Rules 6-A to 6-E and 6-G cannot be taken away by referring to R. 6-F alone. Even Rule 6-F need not refer to money suits alone.

5. In Laxmidas v. Nanabhai, (AIR 1964 SC 11), the Supreme Court had to deal with a suit by one partner against the heirs of a deceased partner for specific performance of an agreement by which the co-partner had agreed to convey his interest to the former. A counter-claim was made by the defendants for account of the dissolved firm. An objection was raised that the counter-claim was not maintainable. In dealing with the law on the point the majority observed thus in paragraph 11:

“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 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 seen 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 O. VIII, R. 6 or in any other provision of the Code which laid an embargo on a Court adopting such a course.”

The Supreme Court has, in this decision, outlined the scope of a counter-claim, though not in a money suit.

6. The petitioner's counsel supports his submission with a reference to the wording of Rule 6. But this can be easily met. While Rule 6 opens with the words “Where in a suit for the recovery of money the defendant claims” Rule 6-A opens with the words “A defendant in a suit may”. The distinction is obvious and cannot escape notice. While Rule 6 deals with suits for money Rule 6-A deals with all suits. The submission made by the petitioner's learned counsel on the words “in addition to his right of pleading a set-off under Rule 6” can also be easily met. Rule 6-A enables a defendant in a suit for the recovery of money not only to plead a set-off but also set-up a counter-claim. That does not automatically lead to the inference that Rule 6-A was introduced only to safeguard counter-claims in suits for recovery of money. The scheme of the new rule is to permit the defendants to set up counterclaims, which arise between the parties and which are cognisable by the Court where the suit is pending. To accept the petitioner's case would be to destroy the object of the new Rules. The object appears to be to reduce pendency of cases so that causes of action and cross-claims similar in nature could be clubbed together and disposed of by a common judgment. Now a specific provision has been enacted though even before the introduction of Rule 6-A, in appropriate cases, Courts bad entertained and disposed of counter-claims.

7. The learned counsel for the respondent brought to my notice a decision reported in Daga Films v. Lotus Production, (AIR 1977 Cal 312) being a case decided after the amendment again to emphasise his point that Rule 6-A contemplates counter-claims in any suit. In that case the plea that is now put forward before me is not seen put forward. The case there was whether the amended procedure would apply since the suit was instituted prior to the amendment. The suit was filed for a declaration that the document dated 7-4-1970 was void or voidable and for a perpetual injunction restraining the defendants from enforcing the said document by realising any sum from the plaintiff and for a decree for Rs. 1,00,000/- by way of damages. The defendants in that case put forward a counter-claim for damages. Ultimately when the matter came up for trial, the suit was not pressed and it was contended that the suit not having been pressed, the counter-claim should go as it had no legs to stand. This plea was repelled and a decree in favour of the defendants was passed. Thus, it can be seen that Courts have not restricted the scope of Rule 6-A only to money suits.

In the result, the submission that R. 6-A can apply only to suits for recovery of money has to fail. The Court below was right in holding that the counter-claim was justified. In the result, this C.R.P fails and is dismissed. The parties are directed to bear their costs.

Revision dismissed.