Disposed

Maninder Singh and Others v. Manjit Kaur and Others

Punjab & Haryana HC4 Dec 2024CR/177/2024

Case brief

AI extract

What is this about?

Revision against rejection of an application under Order 7 Rule 11 CPC seeking rejection of a counter-claim filed by co-defendants. Holding the counter-claim unrelated to the plaintiff's claim and barred under Order 8 Rule 6A CPC, the High Court set aside the impugned order.

What did the court decide?

Impugned order set aside; counter-claim filed by defendant Nos.4 to 6 held barred by law.

Maninder Singh and Others Vs Manjit Kaur and… — Property and Title | Punjab & Haryana HC (2024)

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[146] IN THE HIGH COURT OF P UNJAB AND HARYANA AT CHANDIG A RH

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CR-177- 2 024 (O&M) Date of D ecision : 04.12.2024

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Maninde r Singh and others …Petitioners

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versus

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Manjit K a ur and others ….Respondents

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Coram : HON’BLE MR. JUSTICE PANKAJ JAIN

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Present: Mr. Prateek Sodhi, Advocat e for the petitioners.

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Mr. Kunal Vinayak, Advoca t e for respondent Nos.1 to 3.

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PANKAJ JAIN, J. (ORAL)

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[1] Challenge is to order dated 14.11.2023 passed by the lear n ed Civil Judge (Junior Division), Amritsar, whereby, application filed by the co-defen d ants under Order 7 Rule 11 C P C qua the counter claim file d by defendan t Nos.4 to 6 stands dismissed. [2] Plaintiff filed a suit, seekin g decree of declaration to the e ff ect that after death of Smt. Inderjit Kaur wid o w of late Sardar Gurcharan Si n gh, plaintiff h as become co-owner in poss e ssion to the suit land. Sepa r ate written statements were filed by defenda n t Nos.4 to 6 to set-off. Defen d ant Nos.1 to 3 & 7 filed separate written statement. Defendant Nos.4 t o 6 contested the suit separately. Defendant N os.1 to 3 in their written state m ent propoun d ed Will dated 11.03.2014 of on e Inderjit Kaur. The pleading re a ds

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024 -2-

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as under: -

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“7. That the para no.7 of t he plaint is wrong. It is denied t hat Inderjit Kaur has died intestat e without executing any kind of Wi l l as alleged. It is denied that Inde rj it Kaur has never executed any k ind of Will and she has died int e state as alleged in this para of the plaint. As already submitted a b ove, the fact regarding the execu t ion of the Will is well within the knowledge of the plaintiff and o t her defendants and as such questi o n of not executing any Will does not arise. ”

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[3] Defendant Nos.4 to 6 alon g with the written statement fi led counter-c l aim contested the claim made by Defendant Nos.1 to 3. In the counter-c l aim preferred by Defendant N o s.4 to 6, Defendant Nos.1 to 3 and 7 filed pr e sent application under Order 7 Rule 11 CPC, seeking rejectio n of the count e r-claim. It was claimed that c o unter claim preferred by Defen d ant Nos.4 to 6 was not maintainable against c o-defendants i.e. Defendant N o s.1 to 3 and 7 and further that the counter cla i m was with respect to the prop e rty, which w a s not the subject-matter of the suit. The aforesaid application fi led by the D e fendant Nos.1 to 3 & 7 stand r ejected by the learned Trial Court, holding t h at in order to reach at just pro p er conclusion and to decide th e lis between t he parties, the Court is require d to consider the rival claim ra i sed by count e r-claimants/defendant Nos.4 to 6 . [4] Counsel for the petitioners/d e fendant Nos.1 to 3, while assai l ing the impu g ned order has raised two-fold submissions. He submits tha t in terms of p rovision as contained under Or d er 8-A, it is only against the cla i m

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024 -3-

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of plainti f f that the defendants can mai n tain the counter claim and fur t her submits t h at it should be on the same e x ecution i.e. qua the same subj e ctmatter for which the plaint has been fi l ed. In order to hammerforth his contentio n s, he relied upon ‘Rohit Singh and others versus State of Bihar (now State of Jharkhand) and others’, 2007 AIR (Supreme Court) 10, ‘Satyender and others versus Saroj and others’, 2022 AIR (Supreme Court) 4732, ‘A. Mohamed Sulaiman and another versus A. Ameena Beevi (Deceased) and others’, 2013(11) RCR (Criminal) 187, ‘Soma Devi versus Kashmiri Lal and another’, 2017(4) Law Herald 3362 and ‘Ashok Kumar Sharma versus Rakesh Kumar Sharma and others’, 2024(3) Law Herald 2334 .

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[5] Per contra, Mr.Vinayak, c ounsel for respondent Nos.1 to 3/defend a nt Nos.4 to 6 submits that wh e re there is a collusion between the plaintiff a nd the co-defendants, defenda n ts can maintain the counter cl a im. He furth e r submits that the counter clai m raised by the respondents is q ua the prope r ties inherited by the same ance s tral and thus, it is in the interest of parties th a t whole of the lis be decided to g ether and the multiplicity of th e lis be avoid e d. On being asked as to whethe r defendant Nos.4 to 6 can main t ain separate c ounter-claim, counsel for respo n dent Nos.1 to 3 submits that since the scop e of this revision is only wit h respect to maintainability of the counter c l aim, the query raised by the Co u rt is beyond that.

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024 -4-

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[6] I have heard counsel for t h e parties and have carefully g o ne through t h e records of the case.

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[7] Order VIII Rule 6 CPC pro v ided for right to the defendant s to claim set - off in his written statement. Ba s ed upon the said right to claim s etoff, Rule 6-A to 6-G were incorporated by way of 1976 amendment. T he same rea d s as under:-

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“1 [ 6A. Counter-claim by defendant .—(1) A defendant in a sui t may, in addition to his right of p leading a set-off under rule 6, se t up, by way of counter-claim a g ainst the claim of the plaintiff, an y right or claim in respect of a cause of action accruing to th e defendant against the plaintiff either before or after the filing o f the suit but before the defen d ant has delivered his defence o r before the time limited for d e livering his defence has expired, whether such counter-claim i s in the nature of a claim fo r damages or not:

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Provided that such co u nter-claim shall not exceed th e pecuniary limits of the jurisdic t ion of the court.

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(2) Such counter-cla i m shall have the same effect as a cross-suit so as to enable t he Court to pronounce a fina l judgment in the same suit, bot h on the original claim and on th e counter-claim.

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(3) The plaintiff shall be at liberty to file a writte n statement in answer to the co u nter-claim of the defendant withi n such period as may be fixed by the court.

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(4) The counter-claim s hall be treated as a plaint an d governed by the rules applicab l e to plaints.

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6B. Counter-claim to be stated .— Where any defendan t seeks to rely upon any groun d as supporting a right of counter - claim, he shall, in his written s tatement, state specifically that h e does so by way of counter-clai m .

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024

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6C. Exclusion of counter-claim .—Where a defendant set s up a counter-claim and the p laintiff contends that the clai m thereby raised ought not to b e disposed of by way of counter - claim but in an independent suit, the plaintiff may, at any tim e before issues are settled in rel a tion to the counter-claim, apply t o the Court for an order that su c h counter-claim may be excluded, and the Court may, on the hea r ing of such application make suc h order as it thinks fit.

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6D. Effect of discontinuance of suit .— If in any case i n which the defendant sets up a counterclaim, the suit of th e plaintiff is stayed, discontinue d or dismissed, the counter-clai m may nevertheless be proceede d with.

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6E. Default of plaintiff to reply to counter-claim .—If th e plaintiff makes default in putti n g in a reply to the counter-clai m made by the defendant, the Court may pronounce judgmen t against the plaintiff in relation to the counter-claim made agains t him, or make such order in r elation to the counter-claim as i t thinks fit.

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6F. Relief to defendant where counter-claim succeeds.— Where in any suit a set-off o r counterclaim is established as a defence against the plaintiff’s c laim and any balance is found du e to the plaintiff or the defenda n t, as the case may be. the Cour t may give judgment to the party entitled to such balance. 6G. Rules relating to written statement to apply .—The rule s relating to a written statemen t by a defendant shall apply to a written statement filed in answ e r to a counter-claim.]”

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[8] The provision came up for consideration before the Supr e me Court in t he case of ‘ Rohit Singh and others versus State of Bihar (now State of Jharkhand) and others ’, repor t ed as 2007 AIR (Supreme Cour t)

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024 -6-

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10, wherein, the Supreme Court reite r ated law laid down in ‘ Ramesh Chand Ardawatiya versus Anil Panjwani ’, reported as 2003(7) SCC 3 50

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and held a s under:-

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“11. Learned counsel for the appellants contended that a counterclaim was maintainable even i f the cause of action put forwar d by the defendants in the suit did n ot arise out of the cause of action put in suit by the Plaintiff and th a t under such circumstances, the t rial court and the first appellate court rightly considered the claim put forward by the appellants as a counter- claim and were justifie d in adjudicating it in the manne r in which it was done. It was a lso contended that Order 8 Rule 6A of the Code did not preclude the filing of a counter-claim by o ne defendant against a co-defen d ant even though no relief was clai m ed as against the plaintiff. It was a lso contended that in the absenc e of an answer to the counter-c l aim being filed by defendants 1 a n d 2 or defendants 18 to 20, the t rial court was justified in proceedi n g on the terms of Order 8 Rule 6 E of the Code and in allowing the counter-claim on the basis that t h ere was no resistance or answer to the claim made by way of amend m ent in the written statement. It is t h erefore submitted that the High C o urt was not justified in interfering with the decision of the first appe l late court. On the scope and conte n t of Order 8 Rule 6A of the Code , he referred to various decisio n s including those of this c o urt, culminating in the one in Ramesh Chand Ardawariyab v. Anil Panjwani, 2003(2) RCR (Civil) 828 (SC): (2003(7) SCC 350) and contended that the conclusion answered by the High Court was not warranted. ”

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[9] Three Judges Bench of th e Supreme Court in the case of ‘ Satyender and others versus Saroj and others ’ 2022 AIR (SC) 4732

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024

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again co n sidered its scope of Order 8 Rule 6-A of the Code of C ivil Procedur e and concluded as under:-

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“16. The other finding of Seco n d Appellate Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is, however, co r rect and is based on right interpretati o n of Order VIII, Rule 6A of CPC. F rom the pleadings of the plaintiffs, it is clear that they had never raised any claim on Killa No. 6//18 or Kill a No. 23. The defendants in their wr i tten statement while denying the rig h ts of the plaintiffs on the land of w h ich particulars had been given by th e plaintiffs, quite ingeniously inserte d the two Killa Nos.6//18 and 23, setting a counter-claim on these plots. The Trial Court and the First Appell a te Court while dismissing the plain t iffs' suit had allowed this claim for w i thout assigning any reasons. In fact, this counter claim which was raised by the defendant is barred under O r der VIII, Rule 6A of the CPC. Order V III, Rule 6A reads as under:-

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[6A. Counter-claim by def e ndant.-(1) A defendant in a suit ma y , in addition to his right of plea d ing a set-off under rule 6, set up, by way of counter-claim against th e claim of the plaintiff, any right or c l aim in respect of a cause of act i on accruing to the defendant agains t the plaintiff either before or a f ter the filing of the suit but before the defendant has delivered hi s defence or before the time limite d for delivering his defence-has e xpired, whether such counter-claim i s in the nature of a claim for da m ages or not.

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Provided that such count e r-claim shall not exceed the pecuniary limits of the jurisdiction of th e court.

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(2) Such counter-claim shall have the same effect as a cross-suit s o as to enable the Court to pron o unce a final judgement in the same s uit, both on the original claim a nd on the counter-claim.

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(3) The plaintiff shall be at li b erty to file a written statement in an s wer to the counter- claim of th e defendant within such period as ma y be fixed by the court.

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024

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(4) The counter-claim shall b e treated as a plaint and governed b y the rules applicable to plaints .

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A counter claim can be set up only "against the claim of the plainti f fs". Since there was no claim of the plaintiffs regarding Killa No. 6//8 an d 23, the defendants were barred to r aise any counter claim on these K illa numbers in view of Order VIII, R u le 6A of the CPC as it has nothing t o do with the plaintiffs. It is true th a t a counter claim can be made by the defendant, even on a separate or i ndependent cause of action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors. (1996) 4 SCC 699).

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The Legislature permits the ins t itution of a counter claim, in orde r to avoid multiplicity of litigation. B u t then it has certain limitations suc h as that the counter claim canno t exceed the pecuniary limits of the jurisdiction of the court, and th a t such counter claim must be instit u ted before the defendant has deliver e d his defence or before the time limi t for delivering his defence has expi r ed. More importantly, such a cou n ter claim must be against the plai n tiff! Evidently, in the present case the counter claim was not against t h e plaintiffs. Moreover, as the plai n tiffs had not claimed any right over t h e property and the Killa No s. 6//8 and 23 are not even a part of the su i t property described in the plaint b y the plaintiffs. Despite the same, suc h a claim has been allowed against the plaintiffs. In fact, we do not fin d on record any reply submitted by the plaintiffs against the counter c l aim. To be fair, such a counter c l aim should have been excluded in te r ms of Order VIII, Rule 6C of the C PC. Suffice it to state here that the c o unter claim set up by the defendants has been rightly rejected by the High C ourt. ”

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[10] In view of the above, ther e cannot be any dispute with the propositi o n raised by counsel for respon d ent Nos.1 to 3 that where counterclaim is b eing raised against the claim of t he plaintiff even if co-defendant is

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

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CR-177- 2 024 -9-

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effected t hereby, the counter claim wou l d be maintainable. However, the same ha s to be only with respect to t he claim raised by the plain t iff. Admitted l y, in the present case, the coun t er claim raised by defendant N o s.4 to 6 is n o t relatable to the claim raised b y the plaintiff in his plaint an d is beyond t h at. Thus, the counter claim rai s ed by defendant Nos.4 to 6 w o uld be beyond the scope of Order 8 Rule 6 -A CPC and would be hit by the interpret a tion given by the Supreme Co u rt in the case of ‘ Satyender and others (s u pra) and would be thus not ma i ntainable.

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[11] In view of the above, this Court finds that the learned T rial Court err e d in dismissing the applicatio n filed by the petitioners-defend a nts Nos.1 to 3. Resultantly, the impugned o rder is hereby set aside . Cou n ter claim filed by defendant Nos.4 to 6 is hel d to be barred by law.

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[12] Revision petition stands disposed off. [13] All miscellaneous applicati o n(s), if any, also stands disp o sed off .

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(PANKAJ JAIN) JUDGE

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04.12.20 2 4

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‘R. Sharma'

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Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No

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RAJNEESH SHARMA 2024.12.17 18:39 I attest to the accuracy and integrity of this document

Maninder Singh and Others v. Manjit Kaur and Others

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What is this about?

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Maninder Singh and Others v. Manjit Kaur and Others

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