Karnataka High Court
Sri Channareddy vs Sri Channareddy on 26 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 905 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 905 OF 2024 (GM-CPC)
BETWEEN:
SRI. CHANNAREDDY,
S/O NAGAPPA,
AGED ABOUT 75 YEARS,
AGRICULTURIST,
RESIDING AT YETIGADDAPALLI VILLAGE,
KASABA HOBLI,
BAGEPALLI TALUK,
CHIKKABALLAPURA DIST - 561 207,
...PETITIONER
(BY SRI. NAVEEN J.N., ADVOCATE)
AND:
1. SRI. CHANNAREDDY,
Digitally S/O NANJIREDDY,
signed by V AGED ABOUT 73 YEARS,
KRISHNA
Location: AGRICULTURIST.
High Court of
Karnataka
2. SRI. GOPALAREDDY,
S/O NANJIREDDY,
AGED ABOUT 56 YEARS,
AGRICULTURIST
3. SRI. NARAYANAREDDY,
S/O NANJIREDDY,
AGED ABOUT 51 YEARS,
AGRICULTURIST.
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WP No. 905 of 2024
ALL THE RESPONDENTS ARE
RESIDING AT YETIGADDAPALLI VILLAGE,
KASABA HOBLI, BAGEPALLI TALUK,
CHIKKABALLAPURA DIST - 561 207.
...RESPONDENTS
(BY SRI. N.K. SRINIVASA REDDY, ADVOCATE FOR
C/R1 AND R2)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AT
BAGEPALLI ON I.A.NO.16 IN O.S.NO.181/2013
DATED:4.11.2023 MARKED AT ANNEXURE-E TO THE WRIT
PETITION AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the plaintiff in O.S.No.181/2013 on the
file of Senior Civil Judge, Bagepalli is directed against the impugned
order dated 04.11.2023, whereby the application in I.A.No.16 filed
by the petitioner-plaintiff under Order VIII Rule 6-C of CPC seeking
exclusion of counter-claim setup/put forth by the respondents-
defendants was rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned
counsel for the respondents and perused the material on record.
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3. A perusal of material on record will indicate that the
petitioner-plaintiff instituted the aforesaid suit against respondents-
defendants for declaration permanent injunction and other reliefs in
relation to the suit schedule immovable property. In the said suit,
apart from disputing/denying the claim of plaintiff, the respondents-
defendants also put forth a counterclaim in relation to the written
statement/counterclaim schedule property.
4. In the first instance, by the judgment and decree dated
01.12.2018, the trial Court dismissed the suit as well as the
counterclaim. Aggrieved by the same, two appeals in
R.A.No.51/2019 and R.A.No.170/2019 were preferred by both the
petitioner-plaintiff as well as respondents-defendants and the same
having been heard together, the First Appellate Court remanded
matter back to the trial Court for reconsideration afresh in
accordance with law. In pursuance of the said remand order, the
trial Court recorded further evidence of P.W.1, at which stage, the
petitioner-plaintiff filed the instant application in I.A.No.16 under
Order VIII Rule 6-C of CPC, seeking exclusion of the counter claim
on the ground that the counter claim relates to a totally different
property when compared to the plaint schedule property. The said
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application having been opposed by the respondents-defendants,
the trial Court proceeded to pass the impugned order rejecting
I.A.No.16, aggrieved by which the petitioner-plaintiff is before this
Court by way of the present petition.
5. Before adverting to the rival contentions, it would be
apposite to extract Order VIII Rule 6-C of CPC, which reads as
under:
"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."
7. A plain reading of Order VIII Rule 6-C of CPC is
sufficient to come to the conclusion that any request made by
plaintiff for exclusion of counterclaim of the respondents-
defendants can be made by the petitioner-plaintiff only before
settlement/framing of issues in the suit. In the instant case, it is an
undisputed fact that the trial of the suit not only commenced but
also concluded and the judgment and decree was passed and
thereafter, the appeals filed by both parties were allowed and the
matter remitted back to the trial Court for reconsideration afresh in
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accordance with law. Under these circumstances and having regard
to previous history involved in the litigation, the trial Court was fully
justified in rejecting I.A.No.16 by holding as under:
"ORDERS ON IA.No.16
The plaintiff has filed IA.No.16 U/Order VIII Rule 6(c) of CPC
for exclusion of counter-claim of the defendants.
2. The present application came to be filed on
16.09.2023 when the matter stands for further chief of PW1.
3. The present application came to be filed on the
following grounds:
3(a). The plaintiff has filed the suit for declaration and
Injunction in respect of 1 Acre 0-08 guntas of the land in
Sy.No.14/1A as per the schedule mentioned in the plaint
whereas the defendants have filed counter- claim claiming
relief to an extent of 0-36 guntas in Sy.No.14/1 with specific
boundaries mentioned in the counter-claim.
3(b). As on the date of filing of the suit the property of
the plaintiff is Sy.No. 14/1A measuring 1-08 guntas whereas
property of the defendant is Sy.No.14/1B measuring 0-23
guntas. From the year 1959 the counterclaim property is 0-23
guntas in Sy.No.14/1B and property of the plaintiff is
Sy.No.14/1A measuring 1-08 guntas. By supressing the said
fact the defendants have claimed 0-36 guntas out of 1-31
guntas in Sy.No.14/1.
3(c). The property claimed by the plaintiff in the plaint
and the relief claimed by the defendants in the property
described in the counter- claim are all together different. The
counter- claim has to be made in respect of the property
claimed in the suit filed by the plaintiff.
3(d). Since the property in the suit and property in the
counter-claim are different, the counter- claim in not
maintainable and as such it has to be excluded. Hence, the
application .
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4. By opposing this application the defendants have filed
objection denying the averments made in the affidavit annexed
to the IA No.16 inter-alia contending that the plaintiff has been
filing application one after another to drag the proceeding and
to harass the defendants. Upon these grounds it is prayed to
dismiss the application.
5. Prior to filing of this application, the plaintiff has filed
IA.No.13 U/o VI Rule 17 of CPC on 04.02.2023 seeking
amendment in the plaint and filed IA No.15 under section 151
of CPC seeking permission to file Written Statement to the
counter- claim of the plaintiff. After contest, IA.No.13 and 15
filed by the plaintiff were dismissed by order dated 17.06.2023
and 18.8.2023 respectively.
6. It is worth to note that after completion of the trial,
having heard the arguments on both the side, this Court by
judgment dated 01.12.2018 dismissed the suit of the plaintiff
as well as the counter-claim filed by the defendants.
Accordingly, the decree was drawn on 14.12.2018.
7. Being aggrieved by the impugned judgment and
decree, the plaintiff and defendants have preferred respective
appeals in RA.No.51/2019 and RA.No.170/2019 before the
Appellate Court. The Hon'ble Appellate Court by its judgment
dated 02.11.2022 has allowed the two appeals filed by the
plaintiff and defendants and consequently, the judgment and
decree of this suit dated 01.12.2018 was setaside. IA.No.3 filed
in RA.No.51/2019 and IA.No.2 filed in RA.No.170/2019 filed
U/o XLI Rule 27 of CPC were allowed and thereby, the matter
was remanded back to this Court for fresh disposal with a
direction to permit the parties to produce the documents as
mentioned in IA.No.3 and IA.No.2. It is directed the Court to
give an opportunity to both the parties to lead further
evidence. It was also directed this Court to frame proper issues
and dispose of the suit without being influenced by the
observation made in the order. It was directed the parties to
appear before this Court on 05.12.2022 without expecting any
further notice. In view of the same, this suit was taken up file
for fresh disposal in accordance with law.
8. As directed by the Appellate Court, the additional
issue was framed on 17.06.2023.
9. Having heard Sri. J.N.N Advocate for the plaintiff and
Sri. N.K.S Advocate for the defendants and on perusal of the
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materials available on record, the following point that would
arise for consideration is as under:-
"Whether the counter-claim of the
defendants requires to be excluded as per
Order VIII Rule 6(c) of the CPC?"
10. The answer to the aforesaid point is in the
Negative for the following:-
REASONS
11. Admittedly, the plaintiff has filed the suit for
declaration to declare that he is the absolute owner and in
possession of the plaint schedule property and for permanent
injunction restraining the defendants or anybody claiming
through them from interfering with his peaceful possession and
enjoyment of the plaint schedule property.
12. It is the specific case of the plaintiff that under the
partition deed dated 21.05.1955, plaint schedule property was
allotted to the share of father of the plaintiff and father of the
plaintiff had been in possession and enjoyment of the plaint
schedule property and then plaintiff has been in possession of
the plaint schedule property. Since the defendants have been
denying the right of the plaintiff over the plaint schedule
property in the revenue proceedings filed by them, the plaintiff
was constrained to file the suit.
13(a) By opposing the claim of the plaintiff, the
defendants have filed written statement along with the
counter-claim on 25.01.2014 wherein they have pleaded that
only an extent of 1 acre in the plaint schedule survey number
was allotted to the share of father of the plaintiff and 0-31
guntas was allotted to the share of father of the defendants.
13(b) It was further pleaded that the defendants' father
had purchased 0-05 guntas of the land in Sy.No.14/1 through a
registered sale deed executed by mother of the plaintiff,
plaintiff and his brother. However, due to illiteracy, neither the
defendants nor their deceased father have got mutated the
said property in their names. Upon these grounds, they have
sought for declaration to declare that defendants are the
absolute owners of the property measuring 0-36 guntas in
Sy.No.14/1 and permanent injunction restraining the plaintiff
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or anybody claiming through him from interfering with their
possession and enjoyment of the plaint schedule property.
14. This written statement cum counter-claim was filed
on 25.01.2014. As already noticed above, the plaintiff and
defendants of this case have lead evidence before this Court
and completed their side evidence on 04.10.2018 itself. On
going through the judgment and decree in RA.No.51/2019
clubbed with RA.No.170/2019, it is seen that in the respective
appeals filed by the plaintiff and defendants, the plaintiff and
defendants have produced the documents by filing application
U/o XLI Rule 27 of CPC seeking permission to lead additional
evidence. In view of the same and no issue was framed with
regard to the ownership of the defendants in respect of 0-05
guntas of the land which was alleged to have been purchased
by father of the defendants, the Hon'ble Appellate Court has
allowed the both the appeals filed by the plaintiff and
defendants and accordingly, the matter was remanded to this
Court for fresh consideration by giving an opportunity to the
parties to lead evidence.
15. As directed by the Hon'ble Appellate Court, the
plaintiff instead of leading further evidence in respect of the
documents produced before the Appellate Court along with the
application U/o XLI Rule 27 of CPC, the plaintiff has come
up with the application after disposal of two other applications
as noted above.
16. It is relevant note that the plaintiff has filed IA No.13
seeking amendment which came to be dismissed by Order
dated 17.06.2023. After dismissal of the amendment
application the defendant has sought for permission to file
Written statement/ rejoinder which was also dismissed. It is
also worth to note that the defense taken in rejoinder/written
statement which was submitted along with IA No.15 and
proposed amendment sought for IA No.13 are one and the
same. When this court has dismissed the IA No.13 and 14 the
unsuccessful plaintiff has come with this application for
exclusion of the counter-claim on the ground that the property
in the suit and property in the counterclaim are different.
17. It is the argument of the learned counsel for the
plaintiff that since the property in the plaint and property in the
counter-claim are altogether different, the counterclaim is not
maintainable and it requires to be excluded as per provision of
Order VIII Rule 6(c) of CPC. The Learned Counsel for the
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plaintiff in support of his argument has placed reliance upon
the decision of the Hon'ble Apex Court reported in AIR 2022
SC 4732 between Sathyendar and others V/s Saroj and
others wherein it is held that:
"(c) Civil P.C. (5 of 1908), O.8,Rr, 6A,6C - Counterclaim-
Maintainability- Counterclaim can be set up only against
claim of plaintiffs- No claim of plaintiffs regarding two
particular plots about which counterclaim was filed by
defendants- Defendants were barred from raising any
counterclaim on these plots as they had nothing to do
with plaintiffs."
18. Having gone through the Order VIII Rule 6(c) and
decision of the Hon'ble Apex court in Sathyendar case
referred supra there is no doubt that the counter-claim can be
set up only against the claim of the plaintiff. It is also clear in
the mind of the court that the defendants can file counter-claim
seeking counter relief irrespective of the cause of action but the
claim should be in respect of the property claimed by the
plaintiff.
19. If on bare perusal of the schedule property described
in the plaint and property described in the counter- claim
without understanding the real dispute between the parties one
can say that the property claimed in the suit and relief claimed
by the defendants in the counter- claim in respect of the
property described in the counter-claim appears to be different.
20. If the person understood the real dispute between
the parties then it could not be said that the disputed property
claimed by the plaintiff and defendant are different. To know
the real dispute between the parties let this court to see the
admitted and disputed facts in the case.
Admitted facts Disputed facts.
Relationship is admitted As per the case of the
plaintiff
property measuring 1-08
guntas
alloted towards the share
of father of the plaintiff
and 0-23 guntas was
allotted towards the share
of father of the defendant.
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The property bearing As per the defense of the
Sy.No.14/1 defendant 1 Acre was
measures 1 Acre 31 guntas allotted
is towards the share of father
admitted. of the
plaintiff and 0.31 gunta
was
allotted towards the share
of
father of the defendant.
The property originally As per the defense of the
belong to defendant Father of the
Chikka Nanjappa is defendant had purchased
admitted. 0-05 guntas out of 1 Acre
which was alloted towards
the share of father of the
plaintiff under the
registered sale deed
16.8.1975 from mother of
the plaintiff, plaintiff and
his brother.
The property divided under
the
partition deed dated
21.5.1955 is
admitted.
21. From the defense of the defendants it is not in
dispute that in the partition the plaintiff's father has got 1
acre of the land in Sy.No.14/1. As per the case of the plaintiff
the father of the defendants has got 23 guntas in Sy.No.14/1.
The plaintiff has also denied the Execution of the sale deed
dated 16.8.1975. From this it is clear that there is no dispute
with regard to allotment of 1 Acre of the land in Sy.No.14/1
towards the share of father of the plaintiff and 0-23 guntas of
the land in Sy.No.14/1 towards the share of father of the
defendants.
22. The real dispute is with regard to 0.08 gunta alleged
to have been allotted to the share of father of the plaintiff and
father of the defendant as pleaded by the parties. Addition to
that 0-05 guntas which was alleged to have been purchased by
the father of the defendant from the plaintiff, his brother and
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his mother under the sale deed. So the real dispute is with
regard to 0-08 guntas plus 0-05 guntas in total 0-13 guntas of
the land in Sy.No.14/1 which is part and parcel of Re-Survey
No.14/1A measuring 1-08 guntas which stands in the name of
plaintiff, upon which the plaintiff has been claiming relief.
23. When the dispute is with regard to 0-13 guntas
which is part and parcel of the plaint schedule property and the
counter- claim, the counter-claim filed by the defendants
claiming their ownership including undisputed title of 0-23
guntas of the land in Sy.No.14/1 cannot be said that the
property claimed in the suit and counter-claim claimed by the
defendant are altogether different and the counter- claim is not
maintainable.
24. In the humble opinion of this court the decision of
the Hon'ble Apex Court in Sathyendar case referred supra is
not applicable to the case on hand since in the said case the
defendants have claimed counter- claim in respect of the Killa
No.6//18 and 23 which are altogether different from the
properties under the suit bearing two plots 21//3/2 and 7//13
whereas in the present case the dispute is with regard to 0-13
guntas which is part and parcel of the property claimed by the
plaintiff as well as the property claimed by the defendants in
their counter- claim.
25. The plaintiff has claimed relief of declaration and
injunction in respect of 1-08 guntas which includes undisputed
title to an extent of 0-35 guntas plus disputed property to an
extent of 0-13 guntas. Similarly the defendants have claimed
relief of declaration and injunction in their counter- claim in
respect of 0-36 guntas which includes undisputed title to an
extent of 0-23 guntas plus disputed property to an extent of 0-
13 guntas. Since the dispute between the plaintiff and
defendant is only in respect of 0-13 guntas which is the part
and parcel of the property described in the plaint and part and
parcel of the property described in the counter- claim, the
Counter- claim could not be excluded. For the above reasons it
is held that the plaintiff has failed in his another attempt.
26. In view of the above reason it is held that though
the property described in the plaint and counter- claim are
different since the dispute is with regard to 0-13 guntas of the
land only which is part and parcel of the property in the suit
and the counter- claim, it cannot be said that the counter-
claim set up by the defendants is altogether different from the
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property claimed by the plaintiff to exclude the same under
Order VIII Rule 6(c) of CPC. With this, aforesaid point is
answered in the Negative and proceeds to pass the following:-
ORDER
IA.No.16 filed by the plaintiff U/Order
VIII Rule 6(c) of CPC is hereby dismissed."
7. In my considered opinion, the impugned order passed
by the trial Court cannot be said to have occasioned failure of
justice nor can it be said to have contained any illegality or infirmity
warranting interference by this court in exercise of its
powers/jurisdiction under Article 227 of the Constitution of India, as
held by the Apex Court in the case of Radhey Shyam Vs. Chhabi
Nath reported in (2015) 5 SCC 423. Accordingly, I do not find any
merit in the petition and the same is disposed off without
interfering with the impugned order.
8. It is, however, made clear that the rival contentions
between the parties with regard to the claim and counterclaim are
kept open and no opinion is expressed on the same.
Sd/-
JUDGE
KTY
List No.: 1 Sl No.: 17/CT:SNN
