Sarojini Amma & Anr. v. Dakshshyani Amma & Ors., Kerala High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The respondents 1 and 2 filed O.S No. 158 of 1992 before the Munsiff's Court, Wadakkancherry, seeking a permanent prohibitory injunction to restrain the petitioners from causing destruction or alteration of plaint B schedule property described as a pathway, and a mandatory injunction to restore plaint C schedule property described as a water-chal to its original position. The respondents claimed long-standing possession and use of the pathway (plaint B schedule) for ingress and egress and alleged that the petitioners destroyed the water-chal (plaint C schedule) used for draining water. The petitioners denied these allegations and filed a counter-claim against respondents 1 and 2 and respondents 3 and 4 (the R.D.O and Assistant Executive Engineer, PWD Roads), asserting that plaint B schedule was not a pathway but a water-chal which respondents 1 and 2, with the help of respondents 3 and 4, had filled up, causing flooding. The petitioners claimed a right of easement over plaint B schedule and sought declarations and injunctions accordingly. Respondents 3 and 4 were impleaded in the counter-claim as custodians of the puramboke property, but the court below struck their names from the party array, holding the counter-claim not maintainable against them. This order is challenged in the present revision.

Legal Issues Presented

Whether the counter-claim filed by the petitioners can be maintained against respondents 3 and 4, who are not original parties to the suit but custodians of the puramboke property?

Whether respondents 3 and 4 are necessary and proper parties to the counter-claim for its effective adjudication?

Whether the provisions of Order VIII Rule 6A and Order I Rule 10 of the Code of Civil Procedure permit impleadment of persons not originally parties to the suit in a counter-claim?

Arguments of the Parties

Petitioners' Arguments

The counter-claim must be treated as a plaint in a cross-suit and governed by the rules applicable to a plaint, including rule 6A of Order VIII C.P.C.

Rights that accrue incidentally against third parties can be set up by way of counter-claim.

Impleadment of respondents 3 and 4 is justified under the comprehensive provision of Order I Rule 10 C.P.C. as they are necessary parties for complete and effective adjudication.

The court below misconstrued the law by excluding respondents 3 and 4 and the order striking them out from the party array is untenable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gulam v. Gulam Ahmad, AIR 1956 J & K 38	Effect of counter-claim as a cross-suit and its efficacy as a weapon against the plaintiff	The court cited this precedent to affirm that a counter-claim is equivalent to an independent action and must be disposed of along with the main suit.

Precedent

Rule or Principle Cited For

Application by the Court

Gulam v. Gulam Ahmad, AIR 1956 J & K 38

Effect of counter-claim as a cross-suit and its efficacy as a weapon against the plaintiff

The court cited this precedent to affirm that a counter-claim is equivalent to an independent action and must be disposed of along with the main suit.

Court's Reasoning and Analysis

The court analyzed the nature and purpose of a counter-claim, emphasizing that it is treated as a plaint in a cross-suit and governed by plaint-related procedural rules. The court noted that Order VIII Rule 6A C.P.C. allows a defendant to set up any right or claim against the plaintiff, including those accruing incidentally against third parties. Further, the court observed that Order I Rule 10 C.P.C. regarding joinder of parties applies to counter-claims, permitting impleadment of necessary and proper parties whose presence is essential for effective adjudication.

The court referred to the practice under the High Court of Bombay’s Order VI Rule 15, which requires naming all persons involved in a counter-claim if it were to be enforced by a cross-suit, underscoring the necessity of joining all relevant parties. The court rejected the lower court's literal and mechanical interpretation of Order VIII Rule 6A that excluded respondents 3 and 4, holding that their exclusion rendered the adjudication incomplete and ineffectual.

It was highlighted that respondents 3 and 4 were alleged to have colluded with respondents 1 and 2 to deprive the petitioners of their rights over the disputed properties. The court stressed that the truth of these allegations was to be determined on evidence, but their presence as parties was indispensable for a just resolution. Consequently, the order striking out respondents 3 and 4 was set aside.

Holding and Implications

The court set aside the order of the lower court that struck out respondents 3 and 4 from the party array and held that:

The counter-claim filed by the petitioners is maintainable against respondents 3 and 4, who are necessary and proper parties for its effective adjudication.

The direct consequence of this decision is that respondents 3 and 4 must remain parties to the counter-claim, ensuring complete and effective disposal of the controversy. No new precedent beyond the application of existing procedural provisions was established. The counter-claim will be disposed of in accordance with law with all proper parties before the court.

Sarojini Amma & Anr. v. Dakshshyani Amma & Ors.

1. Heard.

2. O.S No. 158 of 1992 pending before the Munsiff's Court, Wadakkancherry is filed by respondents 1 and 2 for a permanent prohibitory injunction to restrain the petitioners herein from causing destruction to or al teration of plaint B schedule property described as a pathway as also for a mandatory injunction to restore plaint C schedule property described as a chal to its original position and for other incidental reliefs. According to them Plaint B Schedule pathway leading to plaint A schedule property has been in their possession and used from time immemorial for ingress and egress and that the petitioners have no exclusive right over the same. They also alleged that plaint C schedule water-chal situated next to the PWD road was being used for draining water and that the petitioners had destroyed it. In the written statement filed by the petitioners, they denied the allegations and also made a counterclaim against the respondents, who are the plaintiffs as also respondents 3 and 4, the R.D.O and Assistant Executive Engineer, PWD (Roads). It was stated that plaint B schedule is not a pathway as described but a water-chal for draining water and that respondents 1 and 2 with the help of respondents 3 and 4 filled it up in March, 1992, that has resulted in flooding their property situated next to the puramboke land. It was further contended that complaint was made to the R.D.O against the respondents and eventually on the intervention of the Panchayat President, they agreed to restore plaint B schedule water-chal before the onset of the monsoon. But without abiding by and suppressing the agreement the suit was filed without bonafides. Petitioners also claimed a right to use plaint B schedule water chal by way of easement by prescription and they therefore prayed for a declaration of their right and for a mandatory injunction in regard to plaint B schedule item and also for a prohibitory injunction with respect to plaint C schedule property. Respondents 3 and 4 were impleaded in the counter-claim since they were the custodians of the puramboke property. Summons was issued to them in the counter-claim and in the statement filed under Order VIII Rule 9 C.P.C, it was stated that the claim against them was not maintainable. The court below considered the maintainability of the counter claim under issue No. 1 and observed that it cannot be canvassed against persons, who are not parties to the suit—against total strangers to the suit—and accordingly found that the counter claim was not maintainable as against respondents 3 and 4, whose names were ordered to be struck out from the party array by order dated 25-1-1994, which is under challenge in this revision.

3. According to the petitioners, since the counter claim has to be treated as plaint in a cross-suit it is governed by the rules applicable to a plaint. On the wording of rule 6A of Order VIII C.P.C “any right or claim in respect of a cause of action accruing to the defendant against the plaint either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired” can be set up by way of counter claim and this would include rights that have accrued incidentally against a third party also. It may sometimes become necessary that adjudication of the counter claim made against the plaintiff may have to be done in the presence of a third party to give a finality to the controversy. Even otherwise, impleadment of respondents 3 and 4 could be justified under the comprehensive provision or Order I, Rule 10 C.P.C There are specific allegations against respondents 3 and 4, who had joined hands with respondents 1 and 2 to deprive the rights that have accrued to the petitioners over plaint B and C schedule properties and therefore they are necessary parties to the counter claim, as otherwise its adjudication would be incomplete and ineffectual. It is submitted that ??? below has misconstrued the law and its order is untenable and has to be set aside.

4. We are not on the question as to the maintainability of the counter-claim against respondents 1 and 2 but whether it is necessary for its effective disposal that respondents 3 and 4 should also be made parties to it. As stated already, respondents 1 and 2 claimed reliefs against the petitioners in regard to plaints B and C schedule properties with respect to which the counter claim has been made not merely against them but respondent 3 and 4. A counter-claim has the same effect as a cross-suit and has to be disposed of along with the main suit in which it is filed. The only limitation is that the court should be competent to dispose of the counter-claim. As observed in Gulam v. Gulam Ahmad, AIR 1956 J & K 38, a counter claim is really a weapon that can be used against the plaintiff as effectively as in an independent action.

5. The main purpose of setting up a counter-claim is to prevent multiplicity of proceedings between the parties. As observed already, it has to be treated as a plaint and is governed by the rules applicable to it. It has to contain the particulars as in Order VII Rule 1 C.P.C among other requirements. Indeed “plaint” has not been statutorily defined. But it should contain necessary and relevant facts constituting the cause of action. The counter-claim need not necessarily be confined to the claim made against the plaintiff, and if for its effective adjudication besides the plaintiff, other interested persons should be made parties, they could be impleaded, if the court is satisfied that without them the adjudication will be incomplete. Order VIII Rule 6A C.P.C does not say as to who shall be parties to the counter claim. It appears to me the provisions as to joinder of parties under Order 1 Rule 10 C.P.C would also apply to counter-claim, no doubt, subject to the condition that persons impleaded are necessary and proper parties for an effective adjudication of the questions involved. The submission that Order VIII Rule 6A does not enable the participation of persons who are not already parties to the suit is difficult to accept.

6. In this connection it has to be pointed out that the High Court of Bombay has by Order Vin Rule 15, made it clear,—

“Where a defendant by a written statement sets up any counter claim, which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his written statement a further title similar to the title in a plaint, setting forth the names of all persons who, if such counter-claim were to be enforced by a cross-suit, and shall deliver copies of his written statement to such of them as are already parties to the suit within the period within which he is required to deliver it to the plaintiff.

7. A rule on similar lines seems to be necessary hereto to make the position clear and beyond doubt. But then even in its absence the defendant would be justified in a proper case to make, besides the plaintiff other necessary parties to the counter-claim without whose presence it could not be properly or effectively adjudicated. The claim need not be confined to or against the plaintiff alone. A restricted interpretation in that behalf cannot be accepted, having regard to the scope and object of the counter-claim, which, as stated already, has to be treated as a plaint in a cross-suit.

8. As far as this case is concerned, the petitioners had in their counter-claim impleaded respondents 3 and 4 since, according to them, the disputed property is a puramboke which is vested with them and with whose connivance the plaintiffs sought to deprive them of their right of user of a pathway over plaint B schedule property and a water-chal in plaint C schedule, through which water used to be drained out from their and other properties. Without them on the party array their claim could not have been effectively adjudicated. They are proper and necessary parties. We are not concerned with the possible outcome of the dispute or with the question whether what had been alleged in the counter claim is true or not. It must rest upon the evidence that will have to be adduced. There is no doubt that the records relating to some previous proceedings connected with this controversy showed that the grievance of the petitioners is well-founded, and, deserved judicial consideration. The stand taken by respondents 3 and 4 in the instant case too to some extent supported the allegations against them.

9. The court below has interpreted the provisions in Order VIII Rule 6A in a literal and mechanical manner to hold that as against respondents 3 and 4 the counterclaim is not maintainable. Their exclusion from the party array was unwarranted. The order is unsustainable. It is accordingly set aside. The counter claim as presented by the petitioners will be disposed of in accordance with law.

10. The C.R.P is disposed of as above.

C.R.P No. 1583 of 1994