The introduction of Order VIII R.6-A CPC clarified the right of defendants to claim a set off in suits other than money suits, and the provisions of R.6-A contemplate counter claims in any suit.

1. The plaintiff in O.S. No. 288 of 1978 of the Munsiff's Court, Haripad, is the revision petitioner. The suit was for an injunction to restrain the defendant from trespassing into the plaint schedule property and tampering with the fences constructed by the plaintiff. The property in the plaint schedule was part of a bigger item, jointly owned by the defendant and his brother. There was a partition between them. The plaintiff's wife is the assignee from the defendant's brother and the suit was filed by the husband on behalf of the wife. In the suit the defendant-respondent filed a counter claim under Order VIII R.6-A C.P.C. The counter claim related to A schedule (1) therein, which formed a part of the property allotted to him in partition and to which he was entitled to be in possession. According to him the plaintiff trespassed into that portion and put up fences. In the counter claim he sought for a declaration of his title to the property and recovery of possession of the same from the plaintiff. This counter-claim was resisted by the plaintiff on various grounds, principally on the ground that such a counter claim under Order VIII R.6-A was not entertainable. The court below held that the counter claim was in order and rejected the plaintiff's objection. Hence this revision.

2. The learned counsel for the petitioner submits before me that the provisions of Order VIII R.6-A can apply only in suits for money and that it cannot be extended to any suit. He first invited me to the opening words in O. VIII R.6(1) CPC. which read "where in a suit for recovery of money the defendant claims to set off " to state that it admits of no doubt that this rule relates to money suits and money

suits alone. Then he read R.6-A and said that the expression therein "in addition" indicated that this rule also applied only to money suits. His submission is that what this rule permits a defendant is not only to claim a set off but to put forward a counter claim if any amount is due from the plaintiff, in excess of the plaint claim. But that can only be in a suit for money, and in no other suits. He sought further support for this contention by quoting R.6-F which reads:

"6-F. Relief to defendant where counter-claim succeeds Where in any suit a set-off or counter-claim is established as a 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."

The submission made is that the expression "any balance is found due to the plaintiff or the defendant" also indicates that R.6-A deals with only set off and counter-claims in money suits. He also invited my attention to Order XX R.19 which reads as follows:

"Decree when set off or counter claims allowed:-(1) Where the defendant has been allowed a set off or counter -claim against the claim of the plaintiff. the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

to contend that this sub-rule also denotes that the set off or counter claim can relate only in suits for money.

3. The learned counsel for the respondent met this plea saying that even before the introduction of R.6-A in the CPC. by Act 104 of 1976, courts had recognised the right in the defendants to claim a set off in suits other than money suits. Now a specific provision has been introduced to make the position clear.

4. I shall consider the rival contentions presently. There is a clear distinction between set off and counter claim. Before the introduction of R.6-A, the defendant had a statutory defence of set off. I find it difficult to accept the contention that a counter claim can be made only in a suit for money. Instances are not rare even before R.6-A came into vogue where counter claims were put forward in suits other than money suits. Now specific provisions are made. R.6-A t