Punjab-Haryana High Court
Ashok Kumar Sharma vs Rakesh Kumar Sharma And Others on 19 March, 2024
Author: Archana Puri
Bench: Archana Puri
2024:PHHC:038799
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-1974-2020 (O&M)
Date of Decision: March 19, 2024
Ashok Kumar Sharma
...Petitioner
Versus
Rakesh Kumar Sharma and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Ashish Aggarwal, Senior Advocate with
Ms.Aashna Aggarwal, Advocate
for the petitioner.
None for respondent No.1.
Mr.Vishal Garg Narwana and Mr.Arishdeep, Advocates
for respondents No.3 to 5.
****
ARCHANA PURI, J.
The petitioner has invoked the jurisdiction of this Court under
Article 227 of the Constitution of India, thereby, making a prayer for setting
aside of the order dated 08.01.2020 (Annexure P-14), being illegal ultra-
vires, void and without jurisdiction and further made a prayer that
application dated 11.07.2019 (Annexure P-12) filed by the petitioner, for
dismissal of the counter-claim, be allowed in the interest of justice.
The essential facts, to be noticed, are as herein given:-
That, initially, respondent No.1 (plaintiff before learned trial Court)
had filed a suit for issuance of permanent injunction to restrain defendant
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No.1 (petitioner in the present revision petition) from alienating, transferring
or mortgaging more than his half share and further to restrain the other
defendants and their attorneys etc. from alienating, transferring or
mortgaging any part of the suit property, as detailed in the headnote of the
plaint.
Though, not reproduced in the plaint, but what could be
gathered from the title of the suit as well as from the grounds of revision, the
essential pedigree table is reproduced, as herein given:-
Kewal Krishan Sharma Kamla Devi
(died on 01.11.1981) (died on 08.10.2013)
Executed Will in favour of Executed Will in favour of
Kamla Devi (his wife) on 16.08.1974 Ashok Kumar Sharma on 06.01.2006
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Rakesh Ashok Naresh Veena Sunita Poonam
Kumar Kumar Kumari Sethaputra Sharma Anand
(R. No.1) (Pet.) (R. No.2) (R. No.3) (R. No.4) (R. No.5)
In the plaint, it is asserted that Kewal Krishan Sharma, was
owner of the suit property (as detailed in the headnote of the plaint). During
his lifetime, he had executed a Will dated 16.08.1974, vide which, he had
appointed his wife Kamla Devi i.e. mother of the plaintiff and defendants, as
trustee and it was duly mentioned in the Will that after the death of Kamla
Devi, his property is to bequeath in favour of plaintiff Rakesh Kumar
Sharma and defendant No.1 Ashok Kumar Sharma, in equal shares. Probate
was also granted by the High Court of Singapore. On the basis of the said
Will, mutation of inheritance was sanctioned, in favour of mother of the
parties i.e. Kamla Devi, vide mutation No.944, as per the order of Collector
dated 25.08.2004, which has been incorporated in the revenue record.
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The said property was joint property, along with other co-
sharers i.e. brothers of K.K.Sharma and the property was partitioned
between the parties and mutation in this regard was sanctioned vide
mutation No.1096, which entry was reflected in the jamabandi.
However, mother of the parties, namely Kamla Devi died on
28.10.2013. Defendant No.1 (petitioner), in order to frustrate the right of the
plaintiff on the basis of the Will dated 16.08.1974, had moved an application
before concerned office, to sanction mutation of inheritance of Kamla Devi,
in his exclusive name. The plaintiff having come to know about the same,
had filed objections before the concerned Tehsildar. Also, it was averred in
the plaint, that the plaintiff and defendant No.1 are joint owners in
possession of the said property, in equal shares, as per Will dated 16.08.1974
and the plaintiff also requested defendant No.1 and other defendants, to
admit his claim, but they clearly refused in this regard. It was asserted that
defendant No.1 wants to alienate whole land and other defendants are also
trying to alienate the suit property, to some other persons, in order to defeat
the rights of the plaintiff.
Defendant No.1-petitioner filed written statement. Besides
raising preliminary objections, also defendant No.1, asserted about the
execution of Will by his father on 16.08.1974, on the basis whereof,
property has been transferred/mutated in the name of Kamla Devi.
Furthermore, it was asserted that during her lifetime, Kamla Devi had
executed a Will dated 06.01.2006, in his favour. The said Will was upheld at
various forums and accordingly, land in Karnal had been mutated in the
name of the answering defendant vide mutation No.8203. Even, on the basis
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the Will, executed by his mother, mutation No.733 has been sanctioned in
favour of the answering defendant by the Revenue Officer at Kapurthala.
Also, it was asserted that plaintiff had sought to set aside the Will of
Lt.Smt.Kamla Devi before the Hon'ble High Court of Singapore in suit
No.963 of 20-15 and the said suit has been dismissed. Furthermore, it was
asserted that Kamla Devi had become absolute owner of the estate left by
K.K.Sharma. She died on 28.10.2013. During her lifetime, she had executed
a Will dated 06.01.2006, in favour of answering defendant, which Will has
been upheld at various forums. As such, a prayer was made for dismissal of
the suit.
Defendants No.3 to 5 (respondents No.3 to 5 in the present
revision petition) had filed separate written statement, thereby, asserting
their right to the property in question, on the basis of natural inheritance.
Even, counter-claim by making part of the written statement was filed by
defendants No.3 to 5, thereby, denying the rights solely of plaintiff and
defendant No.1. They had sought declaration that defendants No.3 to 5 are
equal owners along with plaintiff and defendants No.1 and 2, all having
undivided interest in the land, belonging to Kewal Krishan Sharma, as
comprised in the land, as detailed in the clause (a) of paragraph 15 of the
counter-claim. They also sought relief of permanent injunction to restrain
defendant No.1 or the plaintiff from alienating or creating any sort of charge
upon the said property.
In this backdrop, further, it should be noticed that when the case
was taken up on 30.11.2018, the following order was passed:-
"Today the case was fixed for plaintiff evidence and for
payment of cost of Rs.5000/- Case called repeatedly since
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morning, but none has appeared on behalf of plaintiff. It is
04.00 PM. No further wait is justified. Therefore, the present
suit filed by the plaintiff is dismissed U/O 9, Rule 8 CPC.
Perusal of the file shows that counter claim filed by the
defendant Nos.3 to 5 is pending. Therefore, case is adjourned
to 17.12.2018 for the evidence of counter claimant. Ahlmad of
this Court is directed to register the counter claim in CIS
system."
In pursuance of the aforesaid order, the application, in hand, for
seeking dismissal of the counter-claim, was filed, at the instance of the
petitioner (defendant No.1). In the application, there is mention made about
the property to be owned by Kewal Krishan Sharma, who had executed a
Will, in favour of Kamla Devi, as a result whereof, Kamla Devi, further
asserted to have executed a Will, in favour of Ashok Kumar Sharma, on the
basis whereof, the property was inherited by him, which fact is disputed by
the plaintiff, in the suit. Furthermore, it is submitted that the counter-claim
has been filed basically against the petitioner-defendant No.1 and it has been
filed in collusion and in connivance with the plaintiff. With these assertions,
it was also pleaded that the counter-claim is not maintainable, qua co-
defendant i.e. the petitioner.
Reply was filed, thereby, denying the assertions made by the
petitioner-defendant No.1.
After hearing learned counsel for the parties, vide impugned
order dated 08.01.2020, the application for dismissal of the counter-claim
was dismissed.
Being aggrieved, the petitioner-defendant No.1 has filed the
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present revision petition.
The petitioner has basically challenged the filing of the counter-
claim against him, being co-defendant with the counter claimants.
Learned counsel for the parties heard.
The provisions relating to the filing of the counter claim is
contained in Order 8 Rule 6A to 6G of the CPC. For ready reference the
same is reproduced as herein given:-
"Rule 6A. Counter- claim by Defendant-
1) A Defendant in a suit may, in addition to his right of
pleading a set-off under rule 6, set up, by way of counterclaim
against the claim of the plaintiff, any right or claim in respect of
a cause action according to the defendant against the plaintiff
either before or after the filing of the suit, but before 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:
1.Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the court.
2.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.
3.The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period
as may be fixed by the Court.
4.The counter-claim shall be treated as a plaint and governed by
the rules applicable to plaints.
Rule 6B. Counter-claim to be stated
Where any defendant seeks to rely upon any ground as
supporting a right of counter-claim, he shall, in his written
statement, state specifically that he does so by way of counter-
claim. Rule
6C. Exclusion of counter-claim
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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.
Rule
6D. Effect of discontinuance of suit
If in any case in which the defendant sets up a counterclaim, the
suit of the plaintiff is stayed, discontinued or dismissed, the
counter-claim may nevertheless be proceeded with.
Rule 6E. Default of Plaintiff to reply to counterclaim.
If the plaintiff makes default in putting in reply to the counter-
claim made by the defendant, the Court may pronounce
judgment against the plaintiff in relation to the counter-claim
made against him or make such order in relation to the counter-
claim as it thinks fit.
Rule 6F. Relief to Defendant where counterclaim succeeds
Where in any suit a set-off or counter-claim is established as
defence against the plaintiff's claim and any balance is found
due to the plaintiff or the defendant, as the case may be, the
Court may give judgment to the party entitled to such balance.
Rule 6G. Rules relating to written statement to apply
The rules relating to a written statement by a defendant shall
apply to a written statement filed in answer to a counter-claim."
From the aforesaid provision, it is evident that a counter claim
can be filed against the claim of the plaintiff and it can be filed regarding a
cause of action, accruing to defendant, against the plaintiff. However, in the
light of the aforesaid provision, there is no question of a counter claim being
permissible against a co-defendant by a defendant in the suit. Still, further
perusal of the provision contained in Rule 6A(3) states that in case the
counter claim is filed by the defendant, then the plaintiff shall be at liberty to
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file written statement, in answer to the counter claim. Further, Rule 6C gives
entitlement to the plaintiff to raise an objection to the counter claim filed by
the defendant before the issues are framed, in relation to the counter claim
and the plaintiff can make a claim that counter claim of defendant be
excluded from his suit and the defendant, filing the counter claim, may file a
separate suit, if he so desires. Likewise, Rule 6E provides that if the plaintiff
defaults in filing reply to the counter claim; the Court may pronounce the
judgment against the plaintiff, in relation to the counter claim, made against
him. Even, Rule 6F provides that the relief to be granted in the counter claim
is against the plaintiff.
This relates to express provision, vis-a-vis, counter claim filed against
the plaintiff. In the entire provision, nowhere, a co-defendant is
contemplated, as a person required to suffer a counter claim against him by
another co-defendant. In the eventuality, the defendant files a counter claim
against a co-defendant, the co-defendant has not been given any right to file
written statement to the counter-claim, under Order 8 Rule 6A, nor has a
defendant been given any entitlement to make an application for exclusion
of a counter claim filed by co-defendant against him. Furthermore, it also
not provides for pronouncement of a judgment against a co-defendant, in the
eventuality of default of co-defendant to file a written statement to the
counter claim by the co-defendant. Thus, absolutely, there is no provision
made for permitting a counter-claim by defendant against his co-defendant.
In this regard, suffice to make beneficial reference to the
observations by this Court in case titled as ' Soma Devi vs. Kashmiri Lal and
another, 2017(4) Law Herald 3362', which dealt in detail with the provisions
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aforesaid and the implications of the counter-claim filed by the defendant
against the co-defendant and the prejudice of the rights of the co-defendant,
against whom the counter-claim has been filed. It is apt to reproduce the
observations made by this Court, in the aforesaid case, in paragraphs No.15
and 16, as herein given:-
"15. Hence a bare perusal of the claim of Order VIII Rule 6A to
6G shows that it is only the plaintiff; against whom a counter
claim is permissible. It is only the plaintiff who has been given
a right to file reply to the counter claim. It is only the plaintiff
who can make an application for rejection of the counter claim
on the ground that the defendant may file a separate suit and it
is only the plaintiff, on whose default to file the written
statement, the Court can pass a judgment against the plaintiff
and it is only the plaintiff against whom any balance, which is
found due after adjusting the counter claim, can be granted to
the person who is filing the counter claim. In this entire scheme,
nowhere a co-defendant is contemplated as a person required to
suffer a counter claim against him by another co-defendant. In
case defendant files a counter claim against a co-defendant then
co-defendant has not been given any right to file written
statement to the counter-claim under Order VIII Rule 6A. Nor
has a defendant been given any entitlement to make an
application for exclusion of a counter claim filed by co-
defendant against him. Nor the default of a defendant to file
written statement in counter claim by a co-defendant, is
prescribed as a ground for pronouncing a judgment against such
a co-defendant. Even the balance of the relief after adjustment
of counter claim is not contemplated to be granted against a co-
defendant by the CPC. Therefore, expressly, no provision is
made for permitting a counter claim by a defendant against his
co-defendant.
16. Even impliedly the provision for permitting counter-
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claim against co-defendant cannot be read into the statute book
for the simple reason that such an implied presumption would
go totally in contravention with the other provisions of the
Order VIII Rule 6A to 6G. If any counter claim by the
defendant against his co-defendant is entertained by the Court
then the Court would be finding itself in an absurd situation
where the Court would not be authorised to permit filing
written statement against the counter claim by the co-defendant,
the Court would not be authorised to permit a defendant to
move an application for exclusion of the counter claim by the
co-defendant and the Court would not be authorised to grant
relief against co-defendant. For assuming all these powers with
court, again an implied presumption will have to be made that
Court has all these powers because it has permitted the counter
claim to be filed against a co-defendant. This much of
interpolation and reading into the statute which is neither
required nor is necessary and, rather, is prohibited by the law of
interpretation. Any omission to legislation a point has to be
presumed to be intentional on the part of the legislature or the
rules framing authority. Any defendant has, otherwise, full right
to file a separate suit against a co-defendant for any cause of
action. Therefore, no such interpolation of words and phrases in
Order 8 Rule 6A to 6G is called for or permissible. Hence it is
held that a defendant cannot file a counter claim against a co-
defendant under any circumstances. Order VIII Rule 6A to 6G
provide for and conceive of only a counter claim to be filed by
the defendant against the claim of the plaintiff. Hence the
counter claim against the co-defendant in the present case was
not maintainable."
Learned counsel for respondents No.3 to 5 has relied upon
Rohit Singh and others vs. State of Bihar (now State of Jharkhand) and
others, 2007(1) RCR (Civil) 674, to emphasize that counter-claim against
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the co-defendant is maintainable.
However, it is pertinent to mention that Hon'ble Supreme Court
in the subject case (Rohit Singh's case supra) had held that it appeared to
them that the counter-claim has necessarily to be directed against the
plaintiff in the suit; though incidentally or along with it, may also claim
relief against co-defendants in the suit. However, perusal of the dictum of
the Hon'ble Supreme Court reveals that the question, as to whether the
defendant can file counter-claim against co-defendant, was never as such
considered in that case, as the moot question before it was with regard to
counter-claim having not been properly filed in that case. It was the stage, at
which, counter-claim can be filed, which was in dispute. Looking at this, in
Soma Devi's case (supra), it has been observed that this judgment (Rohit
Singh's case supra), is not the precedent on the point that the defendant, as a
matter of right, can file counter-claim against co-defendant, as an
independent remedy and it was also observed about the Hon'ble Supreme
Court having held that the counter claim as necessarily to be directed against
the plaintiff in the suit. It was only so said, while considering the counter
claim against the plaintiff that Court can grant an incidental relief against a
co-defendant also. Further, it was also observed that in the subject case
(Rohit Singh's case supra), the Hon'ble Supreme Court held that where the
relief is solely directed against a co-defendant, is totally not maintainable.
In this context, it was observed in Soma Devi's case (supra) that it is only
that while considering the counter claim filed against the plaintiff that the
Court can grant some incidental relief, even against a co-defendant and thus,
the Hon'ble Supreme Court had never laid down that a co-defendant has an
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independent remedy of filing a counter claim against a co-defendant and in
the light of the same, it was observed that creating an independent right in
favour of a defendant, to file a counter claim against a co-defendant, is
altogether different matter, than the power of the Court to grant an incidental
relief against a co-defendant. However, relief has to be purely incidental to
the main relief being granted by the Court.
In the given circumstances, an independent counter-claim by
the defendant against the co-defendant, is not maintainable, in the
independent capacity of a co-defendant. But, as an incidental relief, to the
main relief, which may be granted against the plaintiff, it may be directed by
the Court, even against a co-defendant, if the need, so arises.
In Satyender and others vs. Saroj and others, 2022(4) RCR
(Civil) 89, it was held that the counter-claim can be set up only "against the
claim of plaintiffs". In this regard, also useful reference is made to Alliance
University Chikkahagade Cross, Bengaluru vs. Sudhir and others, 2017(3)
Air Kar R 209, wherein, it was observed, as herein given:-
"70. A bare perusal of Order 8 Rule 6A of the CPC reveals that
the counter-claim is to be filed "against the claim of the
plaintiff". It can be filed with regard to "any right or cause of
action accruing to the defendant", but "against the plaintiff".
That the counter-claim can be filed only "against the plaintiff"
is further borne out by Order 8 Rules 6-B to 6-F of the CPC.
Thus, the counter-claim cannot be filed against any other
person or entity who is not the plaintiff. It is, indeed, trite to
state that the purpose of permitting a counter-claim to be filed
in a suit is to lessen multiplicity of litigation. Since the suit and
the counter-claim are to be tried together, the common trial
permits the same court to decide the issues which may not only
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be common, but also may be proved by same or similar
evidence. Therefore the counter-claim can be filed only qua the
plaintiff. Of course, it is true that through the counter-claim the
defendant is permitted to raise other cause of action, besides the
ones raised by the plaintiff. But nonetheless, the focus of the
other cause of action still has to be "against the plaintiff", and
not against others."
In this backdrop, at the very outset, it is to be noticed that the
suit of the plaintiff was dismissed under Order 9 Rule 8 CPC, as per the
order dated 30.11.2018, which has been reproduced in earlier portion of the
judgment. On that very day, the counter-claim was observed to be pending.
Thereupon, it was fixed for evidence of the counter claimants. Moreover, on
that very day, the Ahlmad was directed to register the counter-claim.
Copies of the zimini orders passed by learned trial Court have
been produced by learned counsel for the petitioner. Perusal of the same
reveals that issues in the suit were framed on 02.04.2018 and the case was
fixed for evidence of the plaintiff. However, on 18.04.2018, an application
was filed, at the instance of the plaintiff to allow him to place on record the
replication-cum-written reply to the counter-claim filed by defendants No.3
to 5, which was allowed and issues relating to counter-claim were framed
and the case was adjourned further for evidence of the plaintiff. Ultimately,
on 30.11.2018, the suit of the plaintiff was dismissed under Order 9 Rule 8
CPC and thereupon, the case was adjourned to 17.12.2018, for the evidence
of the counter claimants. On that very, the Ahlmad was directed to register
the counter-claim in CIS system.
The zimini orders further reveal that no evidence on behalf of
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the counter claimants was led and an application for dismissal of the
counter-claim was filed by the petitioner-defendant No.1, on 25.07.2019.
After seeking reply, the said application was dismissed vide impugned order.
All this shows that at no point of time, an opportunity was
given to the petitioner to file written statement to the counter-claim. May it
be so. However, it is significant to note that plaintiff had filed a suit for
permanent injunction, while asserting half share in the suit property, on the
basis of the Will of Kewal Krishan Sharma. However, petitioner-defendant
No.1, asserted his right entirely on the basis of the Will of his mother
executed on 06.01.2006. In this context, it should be noticed that defendants
No.3 to 5, by way of counter-claim asserted their rights by virtue of natural
inheritance to the extent of 1/6th share each, of the plaintiff and defendants.
As observed aforesaid, the suit of the plaintiff was dismissed
under Order 9 Rule 8 CPC. Only thereupon, counter-claim was ordered to
be registered and the case was adjourned for evidence of the counter
claimants. Such being the state of affairs, the contest fell on the rights of the
petitioner only, who is defendant No.1 before learned trial Court and he has
not been provided with any opportunity, to file written statement. Law does
not permit so. In these circumstances, counter-claim definitely creates a
cloud on his rights, only vis-a-vis, the suit property. By way of very smart
move, the plaintiff remained away from the Court proceedings to counter the
rights of petitioner-defendant No.1, who, as evident from the paperbook, has
fought his right qua inheritance, in various Courts.
As evident from Annexure P-6, respondent No.1-Rakesh Kumar
Sharma (who is plaintiff before learned trial Court, in the subject suit) had
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earlier filed a suit for declaration, thereby, making all his brothers and
sisters, as defendants, thereby, asserting himself to be owner in possession in
equal share, together with the petitioner-defendant No.1. In the said suit, a
counter-claim was also filed by sisters, who were defendants No.3 to 5.
However, in the said suit, an application for rejection of the counter-claim
was filed by the present petitioner-defendant No.1 and the same was allowed
vide order dated 16.01.2019, copy where of Annexure P-5. However, there
was no further challenge made by the counter claimants to the order dated
16.01.2019.
In the subject suit, the counter-claim was ordered to be
registered, on the day, when the suit was already dismissed against the
plaintiff and a cloud, as such, was attempted to be created, qua the rights of
the petitioner, who is defendant No.1. In this view of the matter, the
counter-claim filed by defendants No.3 to 5 is not maintainable qua
defendant No.1-petitioner. In fact, it is found to be non-entertainable,
obviously, as there is no question of counter-claim being tried, as a counter-
claim qua co-defendant, who asserts his right, to the entire property, on the
basis of the Will executed by his mother, in his favour, more particularly,
when no opportunity had been given to contest the counter-claim, as no
opportunity to file the reply, was given. So no question of counter-claim
being tried as counter-claim or being treated as a fresh plaint arises.
In view of the aforesaid observations, the impugned order is set
aside and consequently, the application for dismissal of the counter-claim is
allowed.
Hence, the revision petition stands allowed.
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Further, without prejudice to the rights of the parties, to be
adjudicated in any other litigation, it is observed that defendants No.3 to 5,
who are respondents No.3 to 5, shall be at liberty to assert their right, by
virtue of natural inheritance of their mother, by having recourse to legal
remedy and the plaintiff and defendant No.1, (who are brothers), ought to be
given an opportunity to contest and raise available objections, which may be
adjudicated by the Court concerned, in accordance with law, uninfluenced
by any observations made hereinabove.
March 19, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
