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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. SOMARAJAN, J.
Sholly Lookose, S/o. Sasalilookose - Petitioner
Versus
V.I. Joseph, S/o. Ipe - Respondent
OP(C) No. 1313 of 2016
Decided On : 03-07-2023
Code of Civil Procedure, 1908 - Order VIII Rule 6A, (4) - Non-impleadment of legal heirs - Counter claim stand abated - Contention was raised that counter claim will stand abated due to non-impleadment of legal heirs of plaintiff as counter claim defendant in suit - Plaintiff in suit would stand in status of a defendant as against counter claim, when treated as a plaint.
Finding of the Court :
When original plaintiff passed away and legal heirs were brought on record by impleadment as supplementary plaintiffs, they would stand stepped into shoes of original plaintiff and necessarily would acquire character of defendants as against counter claim raised - Hence, there is no need to implead them once again separately as counter claim defendants - Further, if it is permitted, it will alter very scope of Rule 6A of Order VIII C.P.C. besides very concept and principle behind it - Argument advanced by petitioners by relying on sub-rule 4 of Rule 6A of Order VIII C.P.C. that they should be impleaded separately as counter claim defendants, otherwise, counter claim would stand abated on account of non-impleadment of legal heirs cannot be sustained.
Result : O.P. dismissed.
JUDGMENT :
A strange contention was raised before the trial court regarding the counter claim raised on the death of original plaintiff. The legal heirs of original plaintiff were impleaded as supplementary plaintiffs. Thereon a contention was raised that counter claim will stand abated due to non impleadment of the legal heirs of the plaintiff as counter claim defendant in the suit. A counter claim can be raised only against the plaintiff in the suit and it is not permissible even to implead any other person in the suit for the purpose of counter claim. Further, the counter claim should always be within the four corners of the suit, both pecuniary and territory and it should be always against the plaintiff, though it can be by one among the defendants or by all the defendants. The counter claim shall be treated as a plaint and governed by the rules applicable to plaints by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C.. The said sub-rule has only a restricted meaning and would come into play only on raising a counter claim in a pending suit. Necessarily, the plaintiff/plaintiffs in the suit would stand in the status of a defendant/defendants as against the counter claim, when treated as a plaint. When the original plaintiff passed away and legal heirs were brought on record by impleadment as supplementary plaintiffs, they would stand stepped into the shoes of the original plaintiff and necessarily would acquire the character of defendants as against the counter claim raised. Hence, there is no need to implead them once again separately as counter claim defendants. Further, if it is permitted, it will alter the very scope of Rule 6A of Order VIII C.P.C. besides the very concept and the principle behind it. The argument advanced by the petitioners by relying on sub-rule 4 of Rule 6A of Order VIII C.P.C. that they should be impleaded separately as counter claim defendants, otherwise, the counter claim would stand abated on account of non impleadment of legal heirs cannot be sustained. Hence, O.P.(C) will stand dismissed accordingly.
Point of Law : Sub rule (4) of Rule 6A of Order VIII C.P.C. has only a restricted meaning and would come into play only on raising a counter claim in a pending suit.
Point of Law : Impleadment of additional counter claim defendant by the trial court is so erroneous and is legally unsustainable.
A defendant cannot file a counterclaim against a co-defendant under the CPC, as the provisions only allow counterclaims against the plaintiff.
Counter-claim – Defendant can claim set-off of any ascertained sum of money legally recoverable by him from plaintiff, against plaintiff’s demand, in a suit for recovery of money – Order 8 Rule 6-A o....
The legal representatives of a deceased counter claimant can be transposed as claimants in the counter claim, and the right to sue survives on the surviving family members.
Plaintiffs have an unqualified right to abandon parts of their claims without court permission, overriding objections from co-defendants regarding counter-claims.
(1) Counter-claim – Relief of specific performance cannot be set up by way of a counter-claim.(2) Counter-claim is treated as a cross-suit and is governed by rules applicable to plaints, including ob....
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