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1983 Supreme(Bom) 250
Bombay High Court
PAUNIKAR
Nav Samaj - Appellant
Versus
Shamrao Tukaramji Patle - Respondent
Decided On : 09/06/1983
R.K. Thakur, for Applicant; B.N. Mohta, for Respondent.
THE PROVISIONS OF ORDER 2 RULE 2 C.P.C. ARE NOT APPLICABLE TO THE FACTS IN THIS CASE AND THAT ORDER 2 RULE 2 OPERATES AS A BAR TO SUBSEQUENT SUIT AND DOES NOT BAR PLEAS IN DEFENCE.
Headnote:
ORDER 2 RULE 2 C.P.C. - COUNTER-CLAIM - ORDER 2 RULE 2 C.P.C., ORDER 8 RULE 9 C.P.C. - THE COURT HELD THAT THE PROVISIONS OF ORDER 2 RULE 2 C.P.C. ARE NOT APPLICABLE TO THE FACTS IN THIS CASE AND THAT ORDER 2 RULE 2 OPERATES AS A BAR TO SUBSEQUENT SUIT AND DOES NOT BAR PLEAS IN DEFENCE.
Fact of the Case:
THE PLAINTIFF, A SOLE SELLING AGENT FOR THE DEFENDANT'S NEWSPAPERS, FILED A SUIT FOR RECOVERY OF VARIOUS AMOUNTS, INCLUDING THE DEPOSIT OF RS. 30,000/- MADE WITH THE DEFENDANT. THE DEFENDANT FILED A COUNTER-CLAIM FOR THE AMOUNT OWED TO HIM BY THE PLAINTIFF. THE PLAINTIFF THEN FILED A REPLY TO THE COUNTER-CLAIM, CLAIMING BACK THE DEPOSIT OF RS. 30,000/-. THE DEFENDANT FILED AN APPLICATION UNDER ORDER 2 RULE 2 C.P.C. TO REJECT THE PLAINTIFF'S COUNTER-CLAIM, WHICH WAS REJECTED BY THE TRIAL COURT.
Finding of the Court:
THE COURT HELD THAT THE PROVISIONS OF ORDER 2 RULE 2 C.P.C. ARE NOT APPLICABLE TO THE FACTS IN THIS CASE AND THAT ORDER 2 RULE 2 OPERATES AS A BAR TO SUBSEQUENT SUIT AND DOES NOT BAR PLEAS IN DEFENCE. THE COURT ALSO HELD THAT THE CAUSE OF ACTION FOR RECOVERY OF THE DEPOSIT IS DISTINCT FROM THE CLAIM MADE IN THE SUIT.
Issues: 1. WHETHER THE PROVISIONS OF ORDER 2 RULE 2 C.P.C. ARE APPLICABLE TO THE FACTS OF THIS CASE? 2. WHETHER ORDER 2 RULE 2 C.P.C. OPERATES AS A BAR TO SUBSEQUENT SUIT OR PLEAS IN DEFENCE? 3. WHETHER THE CAUSE OF ACTION FOR RECOVERY OF THE DEPOSIT IS DISTINCT FROM THE CLAIM MADE IN THE SUIT?
Ratio Decidendi: THE COURT RELIED ON THE FOLLOWING PRINCIPLES: 1. ORDER 2 RULE 2 C.P.C. CONTEMPLATED THE SUIT IN RESPECT OF THE SAME CAUSE OF ACTION TO INCLUDE THE WHOLE CLAIM. 2. THE TEST IN CASES FALLING UNDER ORDER 2 RULE 2 C.P.C. IS WHETHER THE CLAIM IN NEW SUIT IS IN FACT FOUNDED UPON A CAUSE OF ACTION DISTINCT FROM THAT WHICH WAS THE FOUNDATION FOR FORMER SUIT. 3. IF THE EVIDENCE TO SUPPORT TWO CLAIMS IS DIFFERENT, THE CAUSE OF ACTION IS DIFFERENT.
Final Decision: THE COURT DISMISSED THE REVISION APPLICATION FILED BY THE DEFENDANT.
2. The defendant is a company registered under the Companies Act, 1956 and owns two daily newspapers in Nagpur named 'Nagpur Times' and 'Nagpur Patrika' and has its office at Ramdaspeth Nagpur. The plaintiff was appointed sole selling agent for these two papers under written contract. Amongst other terms, the plaintiff as sole selling agent had deposited Rs. 30,000/- as deposit with the defendant at the prescribed rates and he was entitled to commission as per terms of contract.
3. The plaintiff filed a special Civil Suit No. 213 of 1980, against the defendant in the Court of Civil Judge, Senior Division, Nagpur on 3-12-1980, for recovery of Rs. 52,443.83 detailed as under:
The plaintiff in para 16 of his plaint stated that besides the aforesaid amount the deposited amount of Rs. 20,000/- deposited on 18-9-1978 and Rs. 10,000/- deposited on 18-9-1980 are also due and recoverable from the defendant to the plaintiff which amount the plaintiff is not asking in the present suit from the defendant and still continue to be deposit with the defendant. Thus the plaintiff has not claimed this amount in this suit.
4. The defendant filed his written statement with counter-claim on 11-6-81 denying the claim and also the terms of contract said to have been oral between the parties. The defendant submitted that the remuneration payable to plaintiff is governed by written contract. He denied that the plaintiff is entitled to claim Rs. 30,000/- from him since he owes to the defendant the amount in excess of his deposit. He pleaded that the plaintiff failed to pay him the monthly bill amounts to the extent of rupees 39,003.22 as on 31-7-1980, therefore, after adjusting the deposit of Rs. 30,000/-, the plaintiff owed to him Rs. 8,579.65 and adding interest thereon at 12% per annum from 27-7-1980, when the agency of the plaintiff was terminated he filed a counter-claim of Rs. 9,360.65, praying for dismissal of plaintiff's suit and a decree for this amount along with costs and future interest or in the alternative for the amount found due after adjusting the claim of the plaintiff against him, if any.
Rs. 4,300.00 Difference of commission.
Rs. 29,157.00 Difference of commission.
Rs. 28,000.00 Amount due from circulating agent
Rs. 13,000.00 Damages for stoppage of supply
Rs. 15,000.00 Damages to reputation.
Rs. 400.00 Notice charges.
Rs. 92,507.00
Less : Rs. 21,417.34 Amount of Bill
Rs. 17,582.83 Amount of Bill
Rs. 39,053.17
Rs. 52,443.83 Balance
5. The plaintiff on 18-9-1981 in reply to the counter-claim of the defendant filed his written statement and again made a counter-claim of Rs. 31,065/-. He contended that after filing the suit aforesaid, the plaintiff by notice dated 21-7-81 determined the agreement of agency and demanded back from the defendant Rs. 30,000/- as aforesaid plus Rs. 915/- interest plus Rs 150/- notice charges i.e. total Rs. 31,065/-.
6. The defendant then filed an application under Order 2, Rule 2, read with Order 8, Rule 9, C.P.C. on 23-11-1981 and thereby urged that counter-claim of the plaintiff to the extent of Rs. 31,065/- is untenable in law and hence is liable to be rejected. This application was opposed by the plaintiff. After hearing the parties, the learned lower Court vide his order dated 31-7-1962 held that (1) Order 2, Rule 2, C.P.C. does not apply to the facts of this case and (2) O.2, Rule 2 only precludes subsequent suit but does not bar the plea in defence and in this view he rejected the application. This order is challenged by the defendant in this revision application.
7. Shri Thakur, learned counsel for the defendant, contended that there is no provision under C.P.C. for allowing the setting up of a counter-claim by the plaintiff to the counter-claim of the
