Bombay High Court
Abhishek S/O Vikram Boke vs Dr. Ashwinikumar Arvind Deshmukh ... on 24 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1722/2010
Abhishek s/o Vikram Boke,
aged about 20 Yrs., Occu. Student,
R/o F/8, Shirin Garden, Opposite
I.T.I., Aundh, Pune. ..Petitioner.
..VS..
1. Dr. Ashwinikumar Arvind Deshmukh,
aged about 36 Yrs., Occu. Medical
Practitioner.
2.
Dr. (Mrs.) Anupama Ashwinkumar Deshmukh,
aged about 36 Yrs., Occu. Medical Practitioner.
Both R/o Camp Road, Amravati,
Tq. and Distt. Amravati.
3. Vikram Narendra Boke,
R/o Amar Ambainenace,
S. No.61/1 + 4 - 61/2, 3A, 3B,
45A, 5B Gorpadi Sopanbaug,
Pune - 1.
4. Vibha Vikram Boke,
R/o 801, C. Wing, Indus Apartment,
S. No.28/2, Baner, Pune - 45.
5. Chandraprabha Narendra Boke,
'Abhishek' Dhotiwala Layout,
Behind District Court, Camp,
Amravati.
6. Rohini Ashok Patil,
aged about 40 Yrs., Occu. Medical
Practitioner, R/o Amalner,
Distt. Jalgaon.
7. Padmini Bharat Sundram,
Flat No.501, Floration Sopan Baug,
Gorpadigaon, Pune - 13.
8. Ragini Rajesh Shinde,
Aged about 45 Yrs., Occu. Household,
::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 06:29:08 :::
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R/o 42, St. Patrick's Town, Solapur,
Road, Pune - 411 013 (M.S.)
9. Pravin Ramchandra Pote,
Near Dr. Sudha Deshmukh Hospital,
Camp Road, Opposite Holly Cross
Convent School, Amravati.
10. Ramchandra Motiramji Pote,
Aged about 62 Yrs., Occu. Cultivator,
R/o Saraswati Nagar, Amravati,
Tq. and Distt. Amravati. ..Respondents.
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Shri N.R. Kanungo, Advocate h/f Shri S.S. Voditel, Advocate for the petitioner.
Shri J.T. Gilda, Advocate for respondents 1 and 2.
Shri A.S. Kilor, Advocate for respondents 9 and 10.
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CORAM : Z.A.HAQ, J.
DATED : 24.6.2016.
JUDGMENT
1. Heard Shri N.R. Kanungo, Advocate h/f Shri S.S. Voditel, Advocate
for the petitioner - original defendant No.1, Shri J.T. Gilda, Advocate for the
respondent Nos.1 and 2 - original plaintiffs and Shri A.S. Kilor, Advocate for
the respondent Nos.9 and 10 - original defendants 8 and 9. Petition is
dismissed against respondent Nos.3, 4 and 7. None appears for the other
respondents.
2. The petitioner - defendant No.1 has challenged the order passed by
the trial Court allowing the application (Exh. No.86) filed by the respondent
Nos.1 and 2 - original plaintiffs and directing exclusion of counter-claim made
by the petitioner - defendant No.1.
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3. The plaintiffs filed the civil suit praying for decree for specific
performance of contract or in the alternative for refund of consideration, for
damages and interest. According to the plaintiffs, the family of defendant
Nos.1 to 7 owned property admeasuring about 8508 Sq. Ft. with the house
thereon, out of which the defendant Nos.2 and 3 had executed sale-deed in
respect of 3600 Sq. Ft. of rear side of the property in favour of the plaintiffs on
14th May, 1999. The case of the plaintiffs is that the defendant Nos.2 and 3 -
father and mother of defendant No.1, had executed the above sale-deed when
the defendant No.1 was minor, in the capacity as guardian of defendant No.1.
According to the plaintiffs, the defendants had assured to execute the sale-deed
in respect of remaining portion of property after defendant No.1 attains
majority. The plaintiffs have pleaded that the defendants avoided to execute
the sale-deed after the defendant No.1 attained majority and the plaintiffs got
knowledge that there was some transaction between the defendant Nos.1 to 7
with the defendant No.9 and treating it to be refusal on the part of the
defendant Nos.1 to 4 to perform their part of contract, the plaintiffs filed the
civil suit.
4. The defendant No.1 filed his written statement opposing the claim
of the plaintiffs. Along with the written statement, the defendant No.1
submitted his counter-claim pleading that the agreement dated 26th December,
1996 of which the specific performance is sought by the plaintiffs is not legal.
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The defendant No.1 has pleaded that the defendant Nos.2 and 3 had no
authority to deal with the property of defendant No.1 when he was minor.
The defendant No.1 prayed for decree for possession of the strip of land 3600
Sq. Ft. by cancelling the sale deed-dated 14th May, 1999. The defendant No.1
prayed for decree against the plaintiffs to hand over possession of the property
after removing the additional structures erected thereon.
The plaintiffs have filed their written statement to the
counter-claim. In the written statement, the plaintiffs pleaded that the
counter-claim made by the defendant No.1 is not maintainable and has to be
excluded and if at all the defendant No.1 intends to raise the challenge to the
sale-deed dated 14th May, 1999, the defendant No.1 may file separate civil suit.
5. The civil suit progressed and the trial Court framed issues on 15 th
October, 2008. Before recording of evidence could begin, the plaintiffs filed
the application (Exh. No.86) praying that the counter-claim be excluded. The
plaintiffs filed an application (Exh. No.90) under Order 7 Rule 11(d) of the
Code of Civil Procedure praying that the counter-claim made by the defendant
be rejected.
The learned trial Judge, by the impugned order, has granted the
prayer of the plaintiffs and has directed exclusion of counter-claim and in view
of this order, the learned trial Judge has not passed any orders on the
application (Exh. No.90). The defendant No.1 being aggrieved by the order
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passed by the trial Court excluding his counter-claim, has filed this petition.
6. The learned Advocate for the petitioner has submitted that the
counter-claim made by the defendant No.1 satisfies all the other requirements
as per Order 8 Rule 6A of the Code of Civil Procedure, that the claim of the
defendant No.1 is in respect of the same property which is the subject matter of
civil suit, that the claim of the defendant No.1 is against the plaintiffs and there
is no impediment because of which the counter-claim made by the defendant
No.1 cannot be considered along with the claim of the plaintiffs and, therefore,
the trial Court should have continued with the counter-claim alongwith the
suit.
It is submitted that the basic requirement that the cause of action in
respect of which the counter-claim is made should accrue before the defendant
has delivered his defence, is fulfilled in the present case and, therefore, the trial
Court should have continued with the trial of the counter-claim made by the
defendant No.1. To support the submission, reliance is placed on the judgment
given in the case of Vijay Prakash Jarath V/s. Tej Prakash Jarath reported in
2016 (3) SCALE 211.
The learned Advocate for the petitioner argued that as per the
provisions of Order 8 Rule 6C of the Code of Civil Procedure, the plaintiffs
were required to object to the counter-claim before settlement of issues in
relation to the counter-claim. It is submitted that in the present case, the
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application (Exh. No.86) is filed by the plaintiffs after the settlement of issues
and, therefore, the request of the plaintiffs to exclude the counter-claim could
not have been considered by the trial Court.
The learned Advocate has submitted that the trial Court has
committed an error of jurisdiction by directing exclusion of the counter-claim
made by the defendant No.1. It is prayed that the petition be allowed,
impugned order be set aside, the application (Exh. No.86) filed by the plaintiffs
be dismissed and the trial Court be directed to proceed with the counter-claim
made by the defendant No.1, along with the civil suit.
7. Shri J.T. Gilda, Advocate for the respondent Nos.1 and 2/plaintiffs
has submitted that the counter-claim made by the defendant No.1 is in respect
of different cause of action and the claim of the defendant No.1 in
counter-claim is essentially against the co-defendants and, therefore, the
defendant No.1 cannot be permitted to make the counter-claim. The learned
Advocate has submitted that the provisions of Order 8 Rule 6A of the Code of
Civil Procedure enables the defendant to make counter-claim against the
plaintiff but the claim made by the defendant No.1 in counter-claim is not
against the plaintiffs but is against the co-defendant and, therefore, the
defendant No.1 cannot make the counter-claim.
The learned Advocate has pointed out the objection raised by the
plaintiffs in the written statement filed by them to the counter-claim. It is
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submitted that though the application (Exh. No.86) is filed after the settlement
of issues, the objection to the counter-claim was taken at the initial stage in the
written statement before the settlement of issues and, therefore, the submission
made on behalf of the defendant No.1 relying on the provisions of Order 8 Rule
6C of the Code of Civil Procedure is of no consequence. The learned Advocate
has pointed out the provisions of Order 8 Rule 23 of the Code of Civil
Procedure (as applicable to the State of Maharashtra) and has submitted that
the trial Court has rightly considered these provisions for excluding the
counter-claim. It is submitted that the impugned order is proper and it cannot
be said that the trial Court has committed any patent illegality or irregularity
which necessitates the interference with the impugned order.
8. The learned Advocate for the petitioner, in reply, has submitted that
the contention of the respondent Nos.1 and 2 that the counter-claim made by
the defendant No.1 cannot be permitted as it is basically against the
co-defendant, is not correct. It is submitted that the claim of the defendant
No.1 is against the plaintiffs and the defendant No.1 is praying for decree for
cancellation of the sale-deed executed on 14th May, 1999 in favour of the
plaintiffs and the defendant No.1 is also seeking decree for possession against
the plaintiffs. It is argued that the provisions of Order 8 Rule 6 A to Rule 6G of
the Code of Civil Procedure confer a statutory right on the defendant to set up
counter-claim independent of the claim on the basis of which the plaintiffs have
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filed civil suit. Relying on the judgment given in the case of Gayathri Women's
Welfare Association V/s. Gowramma and another reported in AIR 2011 SC 785
and the judgment given in the case of Jag Mohan Chawla and another V/s. Dera
Radha Swami Satsang and others reported in AIR 1996 SC 2222 it is submitted
that language of Sub-rule (1) of Rule 6A of Order 8 of the Code of Civil
Procedure is clear and enables the defendant to make his claim based on
independent cause of action that would be the subject matter of an
independent suit and the claim made in the counter-claim need not be confined
to the cause of action of the same nature as the cause of action of the plaintiff
and it need not relate to or be connected with the original cause of action or
matter pleaded by the plaintiff. It is submitted that the cause of action on the
basis of which the counter-claim is made, need not arise from or have any
nexus with the cause of action of the plaintiff, the only limitation is that the
cause of action should arise till the filing of the written statement or till the
time fixed for filing the written statement lapses.
9. Shri A.S. Kilor, Advocate for the respondent Nos.9 and 10 has
supported the submissions made on behalf of the petitioner on the point that
the counter-claim need not relate to the original cause of action on the basis of
which the civil suit is filed and the counter-claim can be made on the basis of
an independent and different cause of action. The learned Advocate has relied
on the judgment given in the case of Jag Mohan Chawla and another V/s. Dera
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Radha Swami Satsang and others reported in (1996) 4 SCC 699.
10. After considering the pleadings of the parties in the plaint, the
written statement and the counter-claim, I find that that the defendant No.1
has made counter-claim against the plaintiffs, and the defendant No.1 is
seeking decree against the plaintiffs also. The submissions made on behalf of
the plaintiffs that the claim of the defendant No.1 is essentially against the
co-defendants and, therefore, the defendant No.1 cannot be permitted to make
the counter-claim in the civil suit filed by the plaintiffs, cannot be accepted.
11. The submission made on behalf of the plaintiffs that the
counter-claim made by the defendant No.1 cannot be permitted as the cause of
action on the basis of which the counter-claim is made, is different and is not in
respect of the property which is the subject matter of the civil suit, also cannot
be accepted in view of the proposition of law laid down in the judgment given
in the case of Gayathri Women's Welfare Association V/s. Gowramma and
another (cited supra) and the judgment given in the case of Jag Mohan Chawla
and another V/s. Dera Radha Swami Satsang and others (cited supra). The
above judgments lay down that the defendant can make counter-claim on the
basis of different cause of action and in respect of any claim that would be
subject matter of an independent civil suit. The counter-claim made by the
defendant need not relate to or be connected with the original cause of action
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or matter pleaded by the plaintiff and need not necessarily arise from or have
any nexus with the cause of action of the plaintiff.
12. The objection raised by the petitioners that the application
(Exh. No.86) filed by the plaintiffs could not have been entertained by the trial
Court and the counter-claim could not have been excluded as the application
was filed after the settlement of issues, though appears to be sustainable in law
in view of the provisions of Rule 6C of Order 8 of the Code of Civil Procedure,
in the facts of the present case, the objection has to be rejected. It is admitted
fact that the plaintiffs filed the written statement to the counter-claim made by
the defendant No.1 and in the written statement, the plaintiffs contended that
the counter-claim made by the defendant No.1 be excluded. The provisions of
Rule 6C of Order 8 of the Code of Civil Procedure cannot be construed to mean
that the request made on behalf of the plaintiffs to exclude the counter-claim is
required to be made by an application only and if request is made in any other
form, it cannot be accepted. The plaintiffs having made the request for
excluding the counter-claim much before the settlement of issues, only because
application (Exh. No.86) is filed reiterating the request after the settlement of
issues, it cannot be said that the plaintiffs lose the right to prove their request.
13. The principal question which is required to be considered is whether
the opposition of the plaintiffs to the counter-claim made by the defendant
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No.1, carries any weightage and the counter-claim has to be excluded though
otherwise counter-claim can be permitted. The provisions of Order 8 Rule 6C
of the Code of Civil Procedure read as follows:
"6-C. Exclusion of counter-claim - Where a defendant sets up a
counter-claim and the plaintiff contends that the claim thereby
raised ought not to be disposed of by way of counter-claim but in
an independent suit, the plaintiff may, at any time before issues
are settled in relation to the counter-claim, apply to the Court for
an order that such counter-claim may be excluded, and the Court
may, on the hearing of such application make such order as it
thinks fit."
The intention of the Legislature in incorporating Rule 6C of Order 8
of the Code of Civil Procedure is clear and suggests that the request made on
behalf of the plaintiff to exclude the counter-claim, has to be given due
weightage. It is the cardinal principle in judicial proceedings that the party to
the proceedings has the inherent right to oppose any claim made by the other
party, even if there is no provision in the statute providing a right to the party
to oppose the claim of the other party. Therefore, when Rule 6C is
incorporated in Order 8 of the Code of Civil Procedure, it is clear that the Court
is bound to consider the request of the plaintiffs. Though the latter part of Rule
6C of Order 8 of the Code of Civil Procedure gives discretion to the Court to
pass appropriate orders on the application made by the plaintiffs requesting
that the counter-claim be excluded, the discretion will have to be exercised in
favour of the plaintiff. The object of Rule 6C of Order 8 of the Code of Civil
Procedure appears to be based on the cardinal principle that the plaintiff is
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dominus litis and it it is the right of the plaintiff to proceed with the civil suit in
the manner he feels proper and best suited for proving his case. If the
defendant is permitted to make counter-claim, he gets the right to steer the
civil suit as per his wishes and in certain situations there may be a conflict
between the plaintiff and the defendant on the point as to how the civil suit
should proceed.
If the provisions of Rule 6C of Order 8 of the Code of Civil
Procedure are not given the above meaning, but are construed to mean that the
request of the plaintiff to exclude the counter-claim is immaterial, then the
provisions of Rule 6C of Order 8 of the Code of Civil Procedure will be
rendered nugatory.
14. In view of the above, I find that the trial Court has properly
considered the request of the plaintiffs and has rightly excluded the
counter-claim, leaving it to the wisdom of the defendant No.1 to agitate his
claim in separate civil suit. I do not find any patent illegality in the impugned
order. It cannot be said that the trial Court has committed any error of
jurisdiction. I do not see any reason to interfere with the impugned order.
The petition is dismissed. In the circumstances, the parties to bear their own
costs.
JUDGE
Tambaskar.
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