Deewan vs Banwari
2025 Latest Caselaw 2444 MP

Madhya Pradesh High Court

Deewan vs Banwari on 7 January, 2025

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

                                                                      1

    IN THE HIGH COURT OF MADHYA PRADESH
                AT G WA L I O R
                                    BEFORE
    HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

                   MISC. PETITION No. 3746 of 2021
                          DEEWAN AND OTHERS
                                Versus
                          BANWARI AND OTHERS
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Appearance:
       Shri Vivek Khedkar, learned counsel for the petitioner.
       Shri Mahesh Goyal, learned counsel for the respondent No.1.
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        Reserved on                           :      08/11/2024
        Delivered on                          :       07 /01/2025
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        This petition having been heard and reserved for orders,
comiing on for pronouncement this day, the Hon'ble Shri Justice
Milind Ramesh Phadke pronounced/passed the following:
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                                      ORDER

The instant petition under Article 227 of the Constitution of

India is preferred against the order dated 27.08.2021 passed by Second

Additional civil Judge, Class-I, Sabalgarh District Morena in civil suit

No.14A/2020, whereby the learned trial Court in a very cursory

manner relying on provisions of Order 8 Rule 6(C) of CPC had

directed to separate the counter claim, thereby directing the present

petitioners/defendants to file a separate suit with regard to relief

claimed therein.

2. Learned counsel for the petitioners while assailing the

aforesaid order has vehemently argued that in a suit for declaration of

title and permanent injunction filed by the respondents No.1 to

10/plaintiffs in respect of a house constructed over survey No.1287/2

and 1288, on being noticed, a written statement alongwith counter

claim was filed on behalf of petitioners/defendants, in which it was

specifically averred that the land bearing survey no. 1287/2, 1288 in

total area 0.6580 hectares is owned and possessed by them and over

the said land had raised construction of the house and plaintiffs therein

are the tenants, therefore, to deliver the possession of the aforesaid

property back, relief of eviction was sought in the counter claim

alongwith mense profits.

3. It was further averred that after filing of the written statement

and the counter claim, one application under Order 8 Rule 6(C) of

CPC was filed by the plaintiffs alleging that since the counter claim

preferred creates undue discrepancies, therefore, it may be separated

and the petitioners/defendants be directed to file separate suit and in

reply to the said application, it was specifically stated by the

petitioners/defendants that they are the owners of the land on which

the house had been constructed, in regard to which the present suit for

declaration of title and permanent injunction is pending on the ground

of adverse possession and if ultimately the factum of adverse

possession would not be proved then the counter claim for eviction

could be entertained and allowed and, therefore, there is no reason to

separate the counter claim from the present suit, but the learned trial

Court in a most cursory manner had directed to separate the counter

claim without considering the basic fundamental ingredients of

counter claim and without considering the law, thus the said order is

per se illegal and, therefore, deserved to be set aside.

4. While referring to Order 8 Rule 6 (C) of CPC, it has been

argued by the counsel for the petitioner that a defendant in a suit may

in addition to his rights had pleaded set off under Rule 6(C) of CPC,

set off by way of counter claim against the claim of the plaintiff with

regard to any right or claim in respect of a cause of action accruing to

him against the plaintiff either before or after filing of the suit, which

implies that apart from right of pleadings, a set off as counter claim

alleging any right or claim in respect of cause of action as laid down

by the plaintiff can be raised by the defendant, therefore, exclusion of

the counter claim at the instance of the plaintiff though can be ordered

but only after the discretion as is vested in the Court is exercised

judiciously, but without rhyme and reason the said application was

allowed, which deserves to be set aside.

5. It was further argued that admittedly the powers are vested

with the Court to separate the counter claim from the plaint but the

power is also with the Court to entertain the counter claim to minimise

the litigation and admittedly when the property in dispute was owned

and possessed by the petitioners and there was no documentary proof

in favour of plaintiffs/respondents, whereby title of the subject

property was being claimed, as on one hand title was claimed on the

basis of transfer deed though there was no transfer deed available on

record; on the other hand title was claimed on the basis of adverse

possession, thus, on both the counts the title of the present

petitioners/defendants has been admitted, thus in such a situation the

relief which has been claimed for in the suit as well as in the counter

claim is based on title and in such facts and circumstances if the

counter claim is separated from the suit, two different evidences will

had to be recorded by the Court for the same cause of action, thus,

would lead to wastage of prestigious Court hours as well as

unnecessarily filing of another litigation. To bolster his submissions

reliance was placed by the counsel in the matters of Kantilal

Hargovandas Vs. Maniramdasji Guru Narayandasji reported in

1988(1) Gujrat LH 500; in the matter of Shambhu Nath Dey Vs. Sri

Raghunath Dey passed in C.O. No.1536/2008 dated 09.09.2009 and

in the matter of Bhanwar Lal Vs. Chaganlal & Anr. passed in SB

civil writ petition No.11606/2012 dated 04.02.2013.

6. On the other hand, learned counsel for the respondents while

placing reliance in the matter of Sushila Devi Vs. Khalil Ahmed

reported in 2011(3) MPLJ 526; had argued that since the suit filed by

the respondents/plaintiffs was for declaration of title and injunction

and the counter claim made by the petitioners/defendants was for

eviction under the provisions of M.P. Accommodation Control Act and

as in the suit based on contract of tenancy the question of title cannot

be gone into like a regular civil suit based on title and is incidentally

decides the counter claim, if allowed at the stage will have the effect

of prolonging the trial, therefore, the counter claim preferred by the

petitioner was directed to be excluded from the present suit, which had

rightly been directed, thus, no interference is required in the matter.

7. Heard learned counsel for the parties and perused the record.

8. The Apex Court in the matter of Jag Mohan Chawla v. Dera

Radha Swami Satsang reported in 1996(4) SCC 699; while

discussing a question whether in a suit for injunction, counter claim

for injunction in respect of the same or a different property is

maintainable? Whether counter-claim can be made on different cause

of action? had held in para 5 as under:-

" The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? it is true that preceding PC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6a(1) provides that a defendant in a suit may, in addition to his right of pleading a set off under Rule 6, set up 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 damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplified that such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter- claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala & Ors. [(1964) 2 SCR 567], had come to consider the case of suit and cross suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as

plaint. They also sought a prayer to treat the counter- claim as a cross suit. The trial Court dismissed the suit and the counter-claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter- claim for settlement of their claim and defence in written statement as a cross suit. The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right to the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub- rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needles protection, 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. In other words, a defendant can claim any right by way of a counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant

to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the counter- claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar & Anr. v. State of Madhya Pradesh & Ors. [(1987) c SCC 265] where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter- claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal."

9. Order 8 Rule 6(A) (1) provides that a defendant in a suit may,

in addition to his right of pleading may plead on set up a set-off under

rule 6, by way of counter-claim against the claim of the plaintiff

regarding any right or claim in respect of a cause of action accruing to

the defendant against the plaintiff and Sub-rule (2) amplifies that such

counter-claim shall have the same effect as a cross-suit so as to enable

the Court to pronounce a final judgment in the same suit, both on the

original claim and on the counter-claim and the plaintiffs shall be

given a liberty to file a written statement to answer of the counter-

claim of the defendant within such period as may be fixed by the

Court, thus, the counterclaim would be treated, by operation of sub-

rule ( 4) thereof, as a plaint. In sub-rule (1) of Rule 6A, the language is

so couched with the words of wide width as to enable the parties to

bring their own independent cause of action in respect of any claim

that would be the subject matter of an independent suit. Thereby, it

cannot be said that relief claimed in the counter suit is no longer

confined to cause of action of the same nature as original 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.

10. As discussed by the Apex Court above, the words "any right

or claim in respect of a cause of action accruing with the defendant" -

would clearly go to show that the cause of action for filing of a

counter claim need not necessarily arise from the cause of action of

the plaintiff or may even not have any nexus with the cause of action

that occasioned to lay the suit, except for the limitation that the cause

of action should arise before the time fixed for filing the written

statement expires. Though, it is also true that the defendant may set up

a cause of action which has accrued to him even after the institution of

the suit. Thus, instead of relegating the defendant to an independent

suit, to avert multiplicity of the proceedings and needless protection,

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.

11. Likewise, it has been held in the aforesaid judgement by the

Apex Court, this Court also holds that a defendant can claim any right

by way of a counter-claim in respect of any cause of action that has

accrued to him even though it is independent of the cause of action

averred by the plaintiff and have the same cause of action adjudicated

without relegating the defendant to file a separate suit.

12. In the backdrop of the aforesaid legal position, if the facts of

present case is seen the suit filed by the respondents/plaintiffs is with

regard to declaration of title and mandatory injunction on the ground

of the property being transferred by way of a transfer deed and in

alternate having acquired possession on the basis of adverse

possession. On both the counts the title of the present

petitioners/defendants has not been denied though the counter claim is

for eviction on the ground of termination of tenancy w.e.f. 31.10.2020

i.e. after filing of the suit but before framing of the issues but same is

with regard to the property as has been disputed in the present suit and

though the cause of action for filing of the suit in the present counter

claim may be different.

13. Since the title of the writ petitioners/defendants has not been

denied as also in counter claim for eviction the question of title is not

of much relevance, this Court finds that discretion which has been

exercised by the trial Court as provided under Rule 6(C) of Order 8 of

CPC is not judicious. If the situation would have been reversed i.e. in

a suit for eviction a counter claim for title would have been filed the

situation would have been different, but as it is not the case herein the

order suffers from patent perversity and illegality and is accordingly,

hereby set aside.

Certified copy as per rules.

(MILIND RAMESH PHADKE) JUDGE neetu NEETU Digitally signed by NEETU SHASHANK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH

SHASH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=36b486bb0d381b950e435ec09e066bc6b58c b947c1474b7dc349a1cf27eaa2ce, postalCode=474001, st=Madhya Pradesh, serialNumber=E60A9BBFC39E0EE500EAADE1E0B3B8 565CB3A7DC9F5CD048197DF0FF3149AE58,

ANK cn=NEETU SHASHANK Date: 2025.01.08 18:32:13 +05'30'