Sukhpreet Singh vs Kamaljeet Kaur
2010 Latest Caselaw 623 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

          + C.R.P. 21/2010 and CMs No.2199-2200/2010

                                              Decided on 04.02.2010

IN THE MATTER OF :

SUKHPREET SINGH                          ..... Petitioner
                       Through : Mr. Sudhir Nandrajog, Sr. Adv. with
                                 Mr. Abinash K. Mishra, Adv.

                 versus

KAMALJEET KAUR                                  ..... Respondent
                       Through : None.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

    1. Whether Reporters of Local papers may        Yes
       be allowed to see the Judgment?

    2. To be referred to the Reporter or not?       Yes

    3. Whether the judgment should be               Yes
       reported in the Digest?


HIMA KOHLI, J. (Oral)

The present petition is directed against the order dated

19.11.2009 passed by the learned Civil Jude on an application filed by

the petitioner (defendant in the court below) under Order 8 Rule 6-A

read with Order 7 Rules 10, 10A & 11 CPC seeking rejection/dismissal/

return of the plaint filed by the respondent (plaintiff in the court blow).

By the impugned order, the learned trial court dismissed the aforesaid

application of the petitioner/defendant and held that the suit filed by

the respondent/plaintiff against the petitioner/defendant, for declaring

the gift deed dated 29.8.2002 in respect of first floor along with

complete roof rights of the premises bearing No.3/327, Nirankari

Colony, Delhi as null and void, was maintainable.

2. The trial court examined the submissions made on behalf of

the petitioner and held that filing of a counter claim along with the

written statement is not obligatory and it is the discretion of the

defendant whether to file a counter claim or institute a separate suit.

It was further observed that the respondent was well within her right

to have sought a relief of declaration by instituting an independent suit

and that the provision of Order 2 Rule 2 CPC had no application

because it was the first suit of the said nature filed by the plaintiff in

respect of the suit property.

3. Counsel for the petitioner submits that the trial court erred

in passing the aforesaid order for the reason that the provisions of

Order 8 Rules 6-A and 9 CPC give a right to a defendant in a suit to file

a counter claim in addition to his right of pleading a set-off against the

claim of the plaintiff. He states that in the present case, the petitioner

(plaintiff in the court below) had instituted a suit in May, 2008, for

eviction of the respondent herein (defendant in the said suit) from the

same premises, as also for possession thereof, apart from seeking a

decree of mandatory and perpetual injunction and declaration against

the respondent. He states that in view of the fact that the aforesaid

suit was instituted by the petitioner prior in time to the suit instituted

by the respondent on 13.08.2008, the respondent had an opportunity

not only to file a written statement in the said suit, but also to file a

counter claim against the claim of the petitioner and having failed to

do so, the present suit instituted by her later in time, is hit by the

provisions of Order 7 Rule 11(d) CPC, which mandates that the plaint

be rejected when the suit appears from the statement in the plaint to

be barred by any law.

4. In support of the aforesaid submission, counsel for the

petitioner relies on a judgment dated 15.09.2008, passed by a Single

Judge of this Court, in CS(OS) 758/2006 entitled Renu Chhabra vs.

MCD. He particularly refers to para 11 of the aforesaid judgment to

urge that before instituting the present suit, leave had to be sought by

the respondent from the trial court under Order 2 Rule 2 CPC, which

she failed to obtain. Reliance is also placed on the case, Jag Mohan

Chawla & Anr. vs. Dera Radha Swami Satsang & Ors., reported as

(1999) 4 SCC 699 to highlight the object of the amendment

introduced by Rules 6-A to 6-G of Order 8 of the CPC.

5. Order 8 of the CPC deals with the written statement, set-off

and counter claim. An amendment to the said provision was carried

out by the legislature, vide Amendment Act 104 of 1976, whereby

Rules 6-A to 6-G were inserted w.e.f. 1.2.1977. Rule 6-A, with which

we are concerned, deals with a counter claim by a defendant. The

said provision states:

"6-A. Counter-claim by defendant-(1) A defendant in a suit may, in addition to his right to his right of pleading a set-off under rule 6, 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 defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court."

6. As reference to Rule 9 of Order 8 CPC has also been made

by the counsel for the petitioner, the same is reproduced herein below:

"9. Subsequent pleadings-No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same."

7. It is apparent from a perusal of Order 8 Rule 6-A CPC that

the object of inserting the aforesaid provision was to confer a right on

a defendant not only to plead a set-off, but also to file a counter claim

against the claim of the plaintiff, independent thereto, in respect of his

own cause of action. The intention of the legislature was to avoid

multiplicity of litigation and enable both, the suit and the counter claim

in the same suit, to be treated as a suit and disposed of in the same

proceeding instead of relegating a defendant to institute a separate

suit.

8. Order 8 Rule 9 CPC mandates that the defendant shall not

be entitled to present any pleading subsequent to the written

statement other than by way of defence to set-off or counter claim

except by leave of the Court and subject to terms as the Court may

impose. At the same time, in its discretion, the court is entitled to

call a party to file a written statement or an additional written

statement within a stipulated time.

9. In the present case, as indicated above, in May 2008, the

petitioner instituted a suit against the respondent and two others for

seeking various reliefs including a decree of eviction and possession of

the first floor of the premises bearing No.3/327, Nirankari Colony,

Delhi, apart from a decree for mandatory and perpetual injunction and

declaration to the effect that sale deeds dated 1.9.2006 and 20.4.2007

were void ab initio and liable to be cancelled. In the said suit, a

written statement was filed by the respondent herein (defendant No.3

therein) contesting the claim of the petitioner. Subsequently, in

August, 2008, the respondent herein filed a suit for declaration against

the petitioner herein (defendant therein) seeking a declaration to the

effect that the gift dated 29.8.2002 in respect of the same premises,

executed in his favour, be declared as null and void. A written

statement was filed by the petitioner/defendant in the said

proceedings, wherein a number of preliminary objections were taken

including an objection that the suit was barred under Order 2 Rule 2

read with Order 8 Rule 6-A/9 of the CPC. Thereafter, the petitioner

filed a separate application seeking rejection of the plaint on the same

grounds, which has been dismissed by the impugned order.

10. Merely because the property in question is common to both

the suits, (i.e., one instituted by the petitioner in May, 2008 and the

other instituted by the respondent in August, 2008) can itself not be a

ground to accept the contention of the learned counsel for the

petitioner that failure on the part of the respondent to file a counter

claim along with her written statement in the first suit, disentitled her

from exercising her right to institute an independent suit against the

petitioner, at a later date. Order 8 Rule 6-A CPC does not make it

mandatory for a defendant in a suit to file a counter claim along with

the written statement in respect of a cause of action accruing to

him/her against the plaintiff, either before or after filing of the suit.

11. No doubt, the object of the amendment to the aforesaid

provision was to avoid multiplicity of proceedings, however, the same

does not bar the defendant from instituting an independent suit in her

own right. A defendant has an option under the said provision to file a

counter claim, but if he/she chooses not to file one, it cannot put an

embargo on her to file a suit at a later date.

12. In the case of Jag Mohan Chawla (supra), the Supreme

Court was confronted with the question as to whether in a suit for

injunction, a counter-claim for injunction in respect of the same or a

different property was maintainable and whether a counter-claim could

be made on a different cause of action. After delving into the aims

and objects of the amendment to Order 8 of CPC, by virtue of Rules 6-

A to 6-G CPC, the Supreme Court observed that the language of sub-

Rule (1) of Rule 6-A is couched with words of such wide width as to

enable the party to bring his own independent cause of action in

respect of any claim that would be subject matter of an independent

suit. In other words, it was held that a counter claim need not relate

to or be connected with the original cause of action or matter pleaded

by the plaintiff and that a defendant may set up an independent claim

subject to the condition that the cause of action should arise before

the expiry of time fixed for filing the written statement. It was in the

aforesaid context that the Supreme Court observed that instead of

relegating the defendant to an independent suit, to avert multiplicity of

the proceeding and needless protraction, the legislature intended to

try both the suit and the counter-claim in the same suit as suit and

cross-suit and have them disposed of in the same trial.

13. The aforesaid case does not fortify the contention of the

counsel for the petitioner that the respondent having chosen not to file

a counter claim with the written statement in the suit instituted by the

petitioner prior in time, was barred from instituting an independent

suit at a later date, in respect of the same premises. No such

embargo has been placed by the Statute on institution of such a suit.

Hence the provision of Order VII Rule 11(d), CPC cannot be invoked by

the petitioner in the present case, to oust the suit of the respondent.

14. The trial court was therefore justified in holding that the

application filed by the petitioner herein seeking rejection of the plaint

of the respondent under Order 7 Rule 11 (d) CPC, was not

maintainable. Nor can the provision of Order 2 Rule 2 CPC be treated

as a bar for a plaintiff to institute a suit for the first time only for the

reason that the said plaintiff happens to be an objector/ defendant in

an earlier suit instituted by the plaintiff/petitioner in respect of the

same property. The limitation imposed under Rule 2 of Order 2 is on a

plaintiff, who loses his right to sue at a later stage in respect of any

claim, which he omits to sue for in a suit. The said provision has no

application to a defendant in a suit who has chosen not to file a

counter-claim under Rule 6-A of Order 8 CPC. The said Rule only

affords an opportunity to a defendant in a suit, to set up a counter-

claim which can be treated by the court as a cross-suit and

adjudicated in the same trial, instead of compelling the defendant to

file a separate suit. This however does not mean that a suit filed by

such a defendant later in time is not maintainable and is liable to be

rejected. That the petitioner can seek trial of the present suit filed by

the respondent along with his suit, is a different matter. The case of

Renu Chhabra (supra) also has no bearing on the facts of the present

case.

15. For the aforesaid reasons, this Court does not find any

illegality, arbitrariness or perversity in the impugned order which

deserves interference. While affirming the said order, the present

petition is dismissed, along with the pending applications.

                                                        (HIMA KOHLI)
FEBRUARY 04, 2010                                         JUDGE
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