ORDER:
1. After hearing learned counsel at some length, I have come to the conclusion that the civil revision petition need not have been filed at all. Although this is one manner of stating the legal position, I will have to deal with the revision, as it has been preferred, in order to be able to say that it need not have been filed. The following are the circumstances in which the revision has been filed. The respondent instituted a suit against the petitioners herein. It was a suit for goods sold and delivered. The respondent prayed for a decree against the defendants in a certain sum. The defendants entered appearance and filed a written statement. In their pleadings in defence the defendants not only denied the suit claim, but also made a counter-claim as against the plaintiff. Issues were framed in the suit on the above pleadings between the parties. The suit was set for trial. But on the date of hearing, the defendants did not appear either in person or by counsel. The Court accordingly proceeded ex parte and gave judgment in favour of the plaintiff. While doing so. the court decreed the plaintiff's claim and dismissed the defendants' counter claim.
2. The defendants thereupon filed an application in I.A No. 301 of 1980 to set aside the decree passed in the manner aforesaid. The application was filed within the time-limit prescribed by the law for such applications. Some time later, the defendants apparently thought that this application would not serve their purpose fully in restoring the suit for trial. They obviously were under the impression that the application maybe regarded as having to be confined in its scope to set aside only the ex parte decree obtained by the plaintiff, that is to say, the decree in so far as it granted the suit claim as against the defendants. It was imagined by the defendants that this application would not comprehend, within its scope, the other aspect of the ex parte disposal of the suit, namely, the dismissal of the defendants' counter-claim, following the default in the appearance of the defendants at the trial. Acting on this supposition, the defendants filed a distinct and separate application as yet unnumbered, for setting aside that part of the judgment of the trial court in which the defendants' counter-claim was dismissed for default. Since this application was not filed within thirty days from the date of the decree, the defendants thought it fit to file an application under S. 5 of the Limitation Act to condone the delay. This application, I.A 217 of 1981 was opposed by the plaintiff. The trial Court, after considering the merits, dismissed the application, observing that there was no sufficient cause for con donation of the delay. The effect of the dismissal of I.A 217 of 1981 was, of course, the rejection of the unnumbered application for setting aside the decree in so for as the dismissal of the defendants' counter-claim was concerned.
3. This revision has been brought by the defendants against the order passed by the trial court dismissing I.A 217 of 1981 filed under S.S of the Limitation Act.
4. To start with the attempt of Mr. Ananthakrishna Nair, learned counsel for the defendants, was to make out that there was sufficient cause for the delay and the Court below had completely missed the grounds on which it had been made out. As the arguments proceeded, however, learned counsel submitted that there was really no need at all in a case of this kind for his clients to have filed a distinct and separate application in so far as the counter-claim was concerned in an effort to restore the suit. Learned counsel submitted that although the defendants' counter-claim, in one sense, can be regarded as based on a distinct cause of action, it nevertheless was an integral part of the proceedings in the same suit in which the plaintiff had filed a claim against the defendants. He further pointed out that there was one single judgment which disposed of both the plaintiffs' claim and the defendant' counter-claim. Learned counsel accordingly urged that since the defendants had already filed I.A 301 of 1980 to restore the suit, the subsequent applications were supernumerary and there was no need at all to pursue I.A 217 of 1981. It was submitted that in I.A 301 of 1980 itself, the trial court could effectively act so as to restore the suit back to trial not only in respect of the suit claim, but also in respect of the defendants' counter-claim.
5. Mr. P. Venkataraman, learned counsel for the plaintiff on the other hand, referred to the clear and specific provision introduced in the Code by the Amendment Act of 1976 relating to the procedure for the filing and the disposal of counter-claims as part of the proceedings in regular suits. Learned counsel submitted, that the provisions recognised the separate individuality of the suit claim on the one hand, and the counter-claim on the other. Learned counsel pointed out that O. 8, R. 6-A more or less equated a counter-claim in a suit to a cross suit, treating for that purpose the written statement containing the counter-claim as if it were a plaint in a separate suit. The provisions of R. 6-A (2) and (4) were also particularly referred to in argument.
6. The contentions put forward on either side raise considerations which do not seem to have been dealt with by any reported case so far. The text of the Code, before its amendment in 1976, was quite innocent of the category of pleadings called counter-claims, although counter-claims were a familiar procedure in civil proceedings in vogue in Eagland. They were also recognised as a District species of pleadings under the peculiar practice prevailing on the original side of Chartered High Courts in this country. O. 8, R. 6 of the Code, which is still retained in its old form even after the amendment Act 104 of 1976, speaks only of a set-off being put forward by a defendant in a suit as a ground of defence. There are eases in the books which distinguish a set-off, on the one hand, and a counter claim on the other. Even before R. 6-A was introduced in O. 8 by the amendment Act 104 of 1976, civil courts, other than Chartered High Courts, were following the practice of entertaining counter-claims subject to payment of court-fees. In one sense, therefore, R. 6A must be held to have incorporated in the Code only that which had been an unwritten practice in court proceedings earlier. 1 grant that there is a lot to be said in favour of the contention put forward by Mr. Venkataraman that a counter-claim is a thing apart from the suit claim and its separate integrity should not be slurred over or minimised. However, there are strong indications to the contrary to be found in the Code in the conception of the counter-claim especially as provided for in O.S.R 6-A. This Sale speaks of a counter-claim as a plaint in one place and as a cross claim in another place. Nevertheless, in its most operative provision, it lays down that the court shall pronounce a single judgment in the suit, both on the original claim and on the counter-claim. The susceptibility of a counter-claim to be dealt with in a single judgment along with a suit claim, in my opinion, runs counter to the idea of the two being regarded as things apart. It is not sincerely that the Code provides for a single judgment to dispose of, at one, stroke, the suit claim as well as counter-claim, like hitting two birds with one stone. But, R. 6-C specifically lays down a special procedure to separate the suit claim from the counter-claim, wherever the separation is called for. This provision emphasises by implication that as a general rule a suit claim and a counter-claim ought properly to be regarded as constituting a unified proceeding. The rule, however, makes for an exemption, and it is this: should the plaintiff in a given case desire that the counter-claim filed by the defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief before the trial court and it should be done before the issues are settled. On his application for amending his suit claim and the counter-claim, the court will have to consider whether the counter-claim should be dealt with as part and parcel of the suit or whether the defendant should be referred to a separate suit. The exceptional provisions in R. 6-C only illustrate the homogeneity of the suit claim and the counter-claim as a single proceeding.
7. Mr. Venkataraman, referred me to certain other aspects of the rules relating to to counter-claims in which the differential aspects of the counter-claims are found emphasised. I agree that there is no single philosophy about counter-claims which we can spell out from the language of the Code. No consistent picture emerges out of the several rules. In some provisions, the aspect of diversity between the suit claim and the counter-claim is brought out. In other provisions, the essential unity of the two proceedings is highlighted. All we can say is that the Code, as a whole, regards them as constituting a unity in diversity. We are, however, for the nonce, concerned in this case with the question whether against a single judgment disposing of a suit claim and a counter-claim, there should be an insistent demand for plurality of remedial steps for the pursuit of which the party aggrieved should be inexorably driven. The answer seems to me to be clearly in the negative. It is to be found in the words of R. 6-A(2) which enjoins one single judgment in, the suit both on the original claimant on the counter-claim as the one and only method of disposal of all the issues in controversy between the parties.
8. Having regard to the considerations aforesaid, in whatever manner the court disposes of a counter-claim, whether on the merits or ex parte, it cannot be separated from the disposal of the main suit claim, but must be considered as being one with it. As a necessary corollary, it must be accepted that where a defendant who has filed a counter-claim is set ex parte and the judgment is pronounced in his absence, it would be an unnecessary refinement to split the decree into two, one as an ex parte decree so far as the plaintiff's suit claim is concerned, and the other as a dismissal for default so far as the defendants' counter-claim is concerned. In truth, there is but one judgment and that judgment happens to have been rendered ex parte in this case. As a further corollary to this conclusion, it must be held that it is enough if there is but a single motion or application on the part of the defendant to seek to set aside the judgment on sufficient cause. It is not denied by the plaintiff in this case that such an application was filed by the defendants in I.A 301 of 1980. It is also not denied that such an application was filed within time. I am informed that this application is still pending disposal with the trial court. In my judgment, this application comprehends the judgment a sea whole, in both its aspects, namely, the ex parte decree allowing the plaintiff's suit claim and the dismissal for default rejecting the defendants' counter-claim. On a consideration and determination of this application, one way or the other, the function of the court would be discharged in a non-truncated manner so as to restore the suit as a whole, or, as the case may be, not to restore it, as a whole.
9. In the view I have adumbrated above, the defendants need not have bothered to file a separate application to set aside the decree dismissing their counter-claim for default and they need not have moved for excusing the delay in filing that application. If the court below had a proper comprehension of the legal position relating to counter-claims, it would have dismissed the defendants' subsequent applications as superfluous and proceeded to dispose of I.A 301 of 1980, as quite enough for all purposes. As it happened however, the court while dismissing I.A 301 of 1980, had dealt with the matter as though the defendants were under a necessity to pursue two parallel proceedings, one as respects the the suit claim and the other as respects the counter-claim. The only merit if it can be so called, of the order of the Court is that it has enabled this Court to go into the legal position of counter-claims and further proceedings that arise therefrom.
10. With these observations, and for statistical purposes, this civil revision petition will stand dismissed. But, there will be a direction to the court below to hear I.A 301 of 1980 on merits. This means that the court will determine in that application whether the suit both as respects the claim and as respects the counter-claim should be restored to file or not. In the peculiar circumstances of the case, there willbe no order as to costs.
VCS.