This single-judge civic bench dismissed four inter-connected applications challenging the trial court's decision to frame additional issues based on a counter-claim and reject the exclusion application
Petitions dismissed; consolidated costs of Rs.10,000 awarded to the respondent.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No.1183 of 2010
1
In the High Court of Punjab and Haryana, Chandigarh.
CR No.1183, 1184, 1259 & 1263 of 2010(O&M)
Date of Decision: 21.07.2010
Food Corporation of India
....Petitioner
Versus
M/s. Guru Nanak General Mills and others
....Respondents.
Coram:- Hon'ble Mr. Justice Alok Singh
Present: Mr. Haripal Verma, Advocate
Alok Singh, J.(Oral)
These four petitions are inter-connected and involve same controversy, hence, are being disposed of by the one and common order.
Plaintiff – petitioner has filed suit for recovery of Rs.2,61,228/against the defendant – respondent. The defendant having received the summon of the suit, filed his written statement claiming counter claim against the plaintiff to the tune of Rs.1,08,154.10 only. Having received written statement/counter claim, plaintiff – petitioner herein filed his replication/written statement against the counter claim. Issues were framed on 16.1.1988. Defendant moved an application under Order 14 Rule 5 CPC for framing additional issues on the basis of counter claim. Plaintiff also moved an application under Order 8 Rule 6-C CPC for exclusion of the
CR No.1183 of 2010 2
counter claim. The trial Court by the impugned order dated 4.1.2010 allowed the application moved by the defendant under Order 14 Rule 5 CPC and decided to frame additional issues. However, the trial Court rejected the application moved by the plaintiff under Order 8 Rule 6-C CPC vide the impugned order.
Learned counsel for the petitioner vehemently argued that the Court below should have allowed the application moved by the plaintiff under Order 8 Rule 6-C CPC for the reason that no issue was framed on the counter claim. Learned counsel for the petitioner has placed reliance on the judgement of learned Single Judge of this Court in the case of Kulwant Singh Vs. Gurcharan Singh , reported in AIR 2003 Punjab and Haryana page 1 and on the judgement of learned Single Judge of the Calcutta High Court in the case of Oriental Ceramic Products Vs. Calcutta Municipal Corporation , reported in 2000(1) LJR 573.
Order 8 Rule 6-C CPC reads as under: -
“ 6C. Exclusion of counter-claim. - Where a defendant sets up a counterclaims arid the plaintiff contends the claim thereby raised ought not to be disposed of by way of counterclaim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, 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.
From the perusal of Order 8 Rule 6-C CPC, this Court is of the opinion that exclusion of counter claim can be ordered by the Court before framing of the issue for the reasons that counter claim raised ought not to be
CR No.1183 of 2010
3
disposed of by way of counter claim but should have been claimed by way of separate and independent suit.
From the perusal of the record, this Court finds that counter claim raised by the defendant – respondent herein is pertaining to the same transaction. Hence, there was no need for the defendant to file separate suit for the relief claimed in the counter claim.
As per Order 8 Rule 6-A (2) CPC, counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgement in the same suit, both on the original claim and on the counter claim and as per Order 8 Rule 6-A(4) CPC, such counter claim shall be treated as a plaint.
In view of the fact that claim in the plaint and counter claim in the written statement are pertaining to the same period and transaction, hence there was no need for the defendant to file independent separate suit and he has rightly claimed the relief by way of counter claim under Order 8 Rule 6-A CPC. Suit and counter claim are pending for almost twenty years. At this stage, it would not be proper to direct the defendant to file independent suit for the relief claimed in the counter claim.
This Court in the case of Kulwant Singh (supra) in paragraphs 6 and 8 has observed as under:-
“6. The provision of Rule 6-C recognises the right of the plaintiff to apply to the civil court of counter-claim and also a direction to the defendant to get his counter-claim settled in an independent suit. Therefore, Rule 6 clothes the Court with adequate power to exclude a counter-claim and direct the defendant to file an independent suit in cases where the Court
CR No.1183 of 2010
4
may consider it unfair or where it causes complications and would result in prolonging the trial.
8. Therefore, 1 have no hesitation in rejecting the argument that defendant can set up a counter-claim against a codefendant because it would unnecessarily cause embarrassment, complication and confusion. Even, otherwise, the Court is clothed with the adequate power by virtue of provision of order VIII Rule 6-C of the Code that it can order exclusion of counter-claim. I also do not find any reason to conclude that the defendant-petitioner would suffer any prejudice because permission has been given to the defendantpetitioner to file an independent suit by setting up his claim against Ujjagar Singh and his wife.”
In the case of Oriental Ceramic (supra), learned Single Judge of the Calcutta High Court in paragraph 14 has held as under:-
“14. From annexure B to the revisional application, it would appear that the written statement in the suit was filed not earlier than 12th August, 1996 while the application for counter-claim was filed not earlier than 5th May, 1998 when the issues were already settled and the plaintiff went to trial with no notice of any counter claim of the defendants to meet and had even closed his evidence. It is also pertinent to note that the defendants have nowhere cared to disclose any reason whatsoever as to why they did not make this counter-claim when they had to wait so long before putting forward this counter-claim. If at this belated stage, the defendant petitioner'
CR No.1183 of 2010
5
counter-claim be accepted, it is needless to comment that the plaintiff would be taken by surprise and would be seriously prejudiced in defending the counter-claim.”
In the case of Kulwant Singh (supra), learned Single Judge was dealing with the question as to whether a co-defendant can be permitted to seek relief through counter claim against another defendant. The ratio of the case of Kulwant Singh (supra) is approved. This Court is of the opinion that ordinarily co-defendant should not be permitted to seek counter claim against another defendant and no prejudice would be caused if co-defendant is permitted to seek his remedy against another defendant by way of filing separate and independent suit.
In the case of Oriental Ceramic (supra), defendant wanted to seek counter claim by way of application at the belated stage, which was rightly declined. In the case in hand, suit and counter claim were filed more than twenty years before. Issues were framed on 16.1.1988. Asking the defendant to file separate independent suit for the relief claimed in the counter claim seems to be unjustified and shall amount to multiplicity of suit. Rights of defendant would be prejudiced.
In the opinion of this Court, counter claim should be raised at the earliest, ordinarily before the framing of the issues and in any case, before commencement of the trial. This Court is further of the view that codefendant should not be permitted to raise counter claim against another defendant. Counter claim taken at the earliest alongwith the written statement should not be directed to be excluded and the defendant should not be asked to file separate and independent suit.
Under Order 14 Rule 5 CPC, Court has ample power to add,
CR No.1183 of 2010
6
delete, re-cast/modify any issue, at any stage of the suit, which the trial Court deems fit in the interest of justice.
In the opinion of this Court, the trial Court has committed no jurisdictional error or manifest error of law while deciding to frame additional issues on the basis of counter claim and by rejecting the application of the plaintiff under Order 8 Rule 6-C CPC.
In view of the above, petitions are devoid of merit and no interference is called for with the impugned order. Petitions are dismissed with consolidated costs of Rs.10,000/- to be paid by the petitioner to the respondent.
A photocopy of the order be placed on the file of each connected case.
21.07.2010 sk.
3 issues framed by the court
Whether the trial court erred in rejecting the plaintiff's application to exclude the defendant's counter-claim under Order 8 Rule 6-C CPC.
Whether the trial court erred in framing additional issues on the basis of the defendant's counter-claim under Order 14 Rule 5 CPC.
Whether a defendant should be permitted to raise a counter-claim against a co-defendant in the absence of sufficient prejudice to the plaintiff.
Colour shows how this judgement treated each authority
Kulwant Singh Vs. Gurcharan SinghRelied on¶43
Kulwant Singh Vs. Gurcharan Singh, AIR 2003 Punjab and Haryana page 1 · Who else cites this
Oriental Ceramic Products Vs. Calcutta Municipal CorporationReferred¶44
Oriental Ceramic Products Vs. Calcutta Municipal Corporation, 2000(1) LJR 573
3 provisions across 1 enactments
Food Corporation of India
M/s. Guru Nanak General Mills and others
Alok Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
