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High Court Of Calcutta
Subhro Kamal Mukherjee
SEEMA DASGUPTA - Appellant
Versus
GOPAL BANERJEE - Respondent
C. O. 470 Of 2003
Decided On : 09/29/2003
CIVIL PROCEDURE CODE - ORDER 6 RULE 17 - AMENDMENT OF WRITTEN STATEMENT - COUNTER-CLAIM - MAINTAINABILITY - In a suit for injunction, counter-claim for injunction in respect of the same or a different property has been maintainable.
Fact of the Case:
The plaintiff filed a suit for permanent injunction to restrain the defendant from interfering with the free supply of water in the tenanted premises. The defendant filed a counter-claim for a decree for recovery of possession and for damages against the said plaintiff.
Finding of the Court:
The Courts below committed no error of jurisdiction in allowing the application for amendment and granting leave to the defendant to insert such counter claim in the written statement.
Issues: Whether the counter-claim made by the defendant in the suit for permanent injunction by setting up the claim of recovery of possession and mesne profits is maintainable.
Ratio Decidendi: Rule 6a of Order 8 of the Code of Civil Procedure allows a counter-claim to be filed, provided the cause of action had accrued to the defendant before he had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim has been in the nature of a claim for damages or not. A defendant could claim any right by way of a counterclaim in respect of any cause of action that has accrued to him even though it has been 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.
Final Decision: Application under Article 227 of the Constitution of India is rejected.
( 1 ) THIS is to consider an application under article 227 of the Constitution of India against the judgement and order dated january 17,2003 passed by the learned Additional District Judge, Ninth Court at Alipore, District: South 24-Parganas in Civil Revision Case No. 71 of 2001 affirming order No. 57 dated December 14, 2000 passed by the learned Civil judge (Junior Division ). Third Court at Alipore, District: South 24-Parganas in Title Suit No. 151 of 1992.
( 2 ) THE plaintiftfpetitioner instituted Title Suit No. 151 of 1992 in the Court of the learned Civil Judge (Junior Division), Third Court at Alipore, inter alia, for permanent injunction. It has been alleged that the said plaintiff has been a tenant in respect of one garage at northern portion of premises No. 64, Raja basanta Roy Road, Calcutta-29 at a monthly rental of Rs. 200/- (Rupees two hundred) only according to English calendar. The plaintiff has been running a beauty parlour. The landlord arranged for water supply from the main reservoir on the roof of the first floor of the premises by placing a 'patton tank' through a pipeline and water has been provided to the tenanted premises from the said tank. The plaintiff paid Rs. 20,000/- (Rupees twenty thousand) only for keeping the said tank on the roof. It has, further, been alleged that the landlord has been making obstruction as to the supply of water to the tenanted premises and has been interfering with the supply of water from the said tank. The plaintiff, therefore, prayed for a decree for permanent injunction to restrain the landlord and his men and agents from making any obstruction as to the supply of water by removing the stopcock and from interfering with the supply of water from the said tank and from removing and/or shifting the said tank from the roof.
( 3 ) THE defendant/opposite party entered appearance in the said suit and is contesting the said suit by filing a written statement. The said written statement was filed on July 22, 1994.
( 4 ) ON August 17, 2000 the defendant filed an application under Order 6, rule 17 read with section 151 of the Code of Civil Procedure praying for leave to amend the written statement to insert his counter-claim. The defendant, inter alia, prayed for a decree for eviction and recovery of khas possession of the tenanted premises and for recovery of damages and mesne profits. The defendant states that the tenanted premises is required by the defendant for his own use and occupation for keeping his own car.
( 5 ) THE plaintiff contested the said application by filing a written objection.
( 6 ) BY order No. 57 dated December 14,2000 the learned Trial Judge allowed the said application for amendment of the written statement on contest without cost.
( 7 ) THE plaintiff being aggrieved by and dissatisfied with the said order No. 57 dated December 14, 2000 passed in the said Title Suit No. 151 of 1992 filed an application under section 115a of the Code of Civil Procedure in the Court of the learned District Judge at Alipore, District: South 24-Parganas. The said revisional application was registered as Civil Revision Case No. 71 of 2001. Eventually, the revisional application was transferred to the Court of the learned additional District Judge, Ninth Court at Alipore, District: South 24-Parganas and by judgement and order dated January 17, 2003 the learned Additional district Judge rejected the revisional application on contest without any order as to costs.
( 8 ) BEING aggrieved the plaintiff has come up with this application under article 227 of the Constitution of India.
( 9 ) THE provisions of Rule 6a of Order 8 of the Code of Civil Procedure are inserted by the Code of Civil Procedure (Amendment) Act, 1976. The object of enacting the said Rule 6a is to reduce multiplicity of proceedings by providing that causes of action and cross-claims can be clubbed together and disposed of by a common judgement.
( 10 ) PRIOR to insertion of the
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