Rashmi Kapur vs Raman Kapur
1988 Latest Caselaw 43 Del

JUDGMENT

B.N. Kirpal, J.

(1) This order will dispose of an application under Order 6 Rule 17 filed by the respondent for permission to amend the reply filed earlier.

(2) The petitioner had filed an application under Section 7 of the Guardian & Wards Act read with Section 6 of the Hindu Minority & Guardianship Act, 1950, inter alia, praying that she, who was the mother of two children, should be declared and appointed guardian of the said minor children in place of the respondent who is her husband and father of the two minor children. It is the case of the petitioner that the respondent was not entitled to act as a guardian of the children and he should accordingly be removed and the petitioner appointed in his place.

(3) On 15th July, 1987 reply was filed by the respondent to the afore- said petition. The heading of the reply reads as follows : "REPLY to the application under Section 7 of the Guardian & Wards Act, read with Section 6 of the Hindu Minority and Guardianship Act, 1950 on behalf of the Respondent Shri Raman Kapur and the Counter Claim of the Respondent for the custody of the Minor children." In the reply there were allegations made against the petitioner and it has been, inter alia, contended that the petitioner is in illegal custody of the children. In the reply, it is prayed that "the petition of the petitioner be dismissed by this Hon'ble Court and the custody of the children be kindly granted to the respondent, who is their natural guardian being their father".

(4) In this application under Order 6 Rule 17, the respondent- applicant has contended that in the reply there was no specific mention to the provisions of Section 25 of the Guardian & Wards Act and the respondent did not pay a Court fee of Rs. 6.00 . The respondent seeks to amend the reply which he had filed by adding

(5) The petitioner has filed a reply to the said application and has opposed the amendment which is prayed for. It has been vehemently contended on behalf of the petitioner that no counter claim can be raised where the subject matter of the suit is not for recovery of money. It is submitted by the learned counsel for the petitioner that Order 8 Rule 6 provides for set off being pleaded in a written statement. Thereafter, by way of amendment in 1977, Rules 6A to Rules 6G were incorporated Order 8. Rule 6A, according to the learned counsel, gave aright to the defendant in a suit to raise a counter claim in addition to the pleading of set off under Rule 6. Specific reference has been made by the learned counsel to the provision of Rule 6F which, inter alia, provides that where in any suit a set off or counter claim is established as a defense against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, then the Court may give judgment to the party entitled to such balance. The submission of the learned counsel is that the provision of Rule 6F clearly show that reference to counter claim in Rule 6A is to a money suit and not in respect of any other case. Strong reliance is placed by the learned counsel on Jashwant Singh v. Smt Darshan Kaur and others, and Kashi Biswanath Dev v. Paramananda Routrai and others, . In Jashwant Singh's case (supra) it was, inter alia, held that the provisions of Order 8 Rule 6 will apply only in case of money suit. In Kashi Biswanath's case (supra), it was held that Rule 6A, inter alia, provided that the counter claim must be made at the time of filing written statement or before time limited for submission of written statement has expired.

(6) Learned counsel for the applicant, on the other hand, has relied upon a decision of the Kerala High Court in Roman Sukumaran v. Velayudhan Madhavan, , in which it was categorically held that the provisions of Rule 6A will apply not only to money suits but also to other claims. Reliance is also placed on a decision of the Bombay High Court in the case of Sahebrao Vithoba Pawar v. Bapurao Ravji Pawar, where again the counter claim pertained to an action which was not for recovery of money.

(7) Before referring to the aforesaid decisions, it is necessary to analyze the aforesaid provisions of Order 8.

(8) Order 8 Rule 6 specifically states that it applies to suits for recovery of money. It is only in such a suit that the defendant can claim fet off against the plaintiff's demands. Prior to 1977 there was no provision in the Code of Civil Procedure which enabled a defendant to file a counter claim. Whenever the defendant purported to file a counter claim by incorporating the necessary averments in the written statement, the said counter claim used to be regarded as a separate plaint and treated a cross suit. It is with a view to obviate this incongruity which existed that, in 1977, the Code of Civil Procedure was amended and Rules 6A to 6G were introduced in Order 8.

(9) Whereas Order 8 Rule 6 specifically provides that it relates to suits for recovery of money. Rule 6A, on the other hand, states that the defendant may, in addition to his right of pleading a set-off, set up, by way of counter claim against the claim of the plaintiff, "any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defense or before the time limited for delivering his defense has expired, whether such counter-claim is in the nature of a claim for damages or not". It is clear from the reading of Rule 6A that by way of counter-claim a defendant can set up any right or claim. The Rule further provides that such counter claim may be in the nature of damages or not. The use of the words "any right" and the words "damages or not", to my mind, indicate that the counter claim need not necessarily be restricted to a claim for money. But Rule 6A does provide that the counter claim must be "against the claim of the plaintiff". This would imply that the counter claim which is set up must be related to the claim of the plaintiff in the plaint. In other words, there must be some nexus between the claim put forth by the plaintiff in the suit and the counter claim which is sought to be set up by way of a written statement. I find support for this proposition from the observations of a Single Judge in the decision of Sahebrao's case (supra) where it was observed as follows: "FURTHER statutory provisions contained in the matters of raising counter-claim are clearly governed by Order 8 Rule 6A of the Code as enacted by the Amending Act of 1976. Once properly raised before the defendant has delivered the defense or before the time limited for delivering such a defense, the Court has the power to treat such counter-claim as the plaint in a cross-suit and try the same as cross-suit along with the suit, i.e., the claim and the counter-claim together. The underlying principle of these provisions is enabling so as to avoid multiplicity of proceedings, permitting defendant to set up such a counter-claim against the claim of the plaintiff, but that is not to say that any and every claim could be so set up in any suit by mere reason of identity of parlies, ie., plaintiffs or defendants. It is implicit that counter-claim necessarily must be concerning any right or claim iii respect of the cause of action accruing to the defendant against th6 plaintiff either before or after the filing of the suit and be such which can be set up against the claim in suit. Unless these qualifications are satisfied, the same cannot be covered by Order 6, Rule 6A of the Code. For this, the character of the claim that can be set up by the defendant in addition to his right of pleading a set-off assumes importance and calls for scrutiny.

(10) It is true that Order 8 Rule 6F does talk of balance which remains after set-off or counter claim being established to be paid to either the plaintiff or the defendant. The said rule would operate only in a suit for money. Where there is no suit for money, Rule 6F of Order 8 would have no application. Just because Rule 6F would not apply to a suit which is not a money suit does not mean that Rule 6A can only apply to a suit for recovery of money. If the intention of the Legislature was to restrict the operation of Order 8 Rule 6A then, like in Order 8 Rule 6, it would have specifically provided in Order 8 Rule 6A words similar to that of Order 8 Rule 6. The opening words of Order 8 Rule 6A would then have been "where in a suit for recovery of money ......" While the operation of Order 8 Rule 6 is. restricted to a suit for recovery of money, I do not find any such restriction being warranted by the wording of Order 8 Rule 6A. The provisions of Order 8 have been amended with a view to avoid multiplicity of proceedings and it would be defeating the Legislative intent by giving a restricted meaning: to Order 8 Rule 6A. In this connection, I may refer to the decision of the Kerala High Court in Raman Sukumaran's case (supra), where V. Khalid, J. held, with reference to Rule 6F, that "the effect of Rules 6-A to 6-E and 6-G cannot be taken away by referring to Rule 6-F alone". With respect I am unable to agree with the conclusions of the High Court of Patna in- the case of Jashwant Singh (supra). I also find it difficult to agree with the observations of the Orissa High Court wherein Rule 6A seems to have been construed to mean that the counter claim must be filed at the time of filing of the written statement or before the time limited for submission of written statement has expired. Rule 6A, inter alia, provides for a counterclaim against the claim of the plaintiff "in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defense or before the time limited for delivering the defense has expired". This indicates that cause of action in respect of which counter-claim is to be filed must arise before the filing of the written statement or before the time when the written statement is required to be filed. If a cause of action arises after the filing of the written statement or after the time for filing the written statement has expired, then on a correct interpretation of Rule 6A such claim cannot be raised by way of a counter claim but has to be by an independent suit. The reference to the filing of the written statement or the time for filing the written statement is related to and connected with the arising of the cause of action in relation to which the counter-claim is to be filed. In fact in the case of Mahendra Jung Rana v. Pan Singh Nagi, 1980 All. LJ. 319 written statement was allowed to be amended in order to incorporate a claim by way of counter-claim.

(11) Lnviewoftheaforesaid, of the opinion that the provisions of Order 8 Rule 6A can be invoked even in a case like the present, which is not a suit for recovery of money.

(12) It is now well settled that amendment of the pleadings should not be ordinarily refused if a contradictory case is not being set-up. In the present case, as has already been noticed, in the heading to the reply it had been stated that the pleading which was being filed by the respondent-applicant was not merely a reply but was also a counter-claim. Secondly, towards the end of the pleading in question, there was a prayer which was made to the effect that the custody of the children should be restored to the applicant. The averments so made were in effect in the nature of a counter-claim by the respondent. The amendment which he is now seeking is only to obviate any formal or technical objection which may be taken to the effect that there is no mention of Section 25 of the Guardian & Wards Act in the pleading and that the requisite court fee of Rs. 6.00 has not been affixed. The proposed amendment does not take away any admission of the applicant and does not, to my mind, cause any prejudice to the petitioner.

(13) It was also sought to be contended by the learned counsel for the petitioner that this Court would have no territorial jurisdiction to deal with an application under Section 25. An objection to this effect has been taken in the reply to the application as, according to the petitioner, the children are now ordinarily residing in Bombay and, therefore, it is the Courts at Bombay only which will have jurisdiction to deal with an application under Section 25 of the Guardian & Wards Act. At the time of arguments Mr. Khanna, however, submitted that I need not decide this objection at this stage and if the amendment is allowed then it should be left open to the petitioner to raise this contention at the appropriate time. It appears to me that the objection regarding the territorial jurisdiction of this Court is essentially an objection on merits, may be even of a preliminary nature. What I am deciding in this application, however, is the question whether the applicant should be allowed to amend the pleading which he has filed. If the amendment is allowed, it will, of course, be open to the plaintiff to agitate at an appropriate stage, either at the stage of interlocutory application or even at the time of final disposal, that this Court has no territorial jurisdiction to try the claim of the applicant. I, therefore, need not adjudicate upon the merits of this contention at this stage.

(14) For the aforesaid reasons, this application is allowed and the applicant is allowed to make the amendment as prayed for in this application. The counter-claim of the applicant be registered and numbered. There will be no order as to costs.