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High Court Of Himachal Pradesh
T.R.HANDA
SURAT RAM - Appellant
Versus
ASHA RAM - Respondent
Civil Revision Petition No. 31 of 1984
Decided On : 05/01/1986
COUNTERCLAIM - RIGHT TO SET UP - NATURE OF SUIT - NATURE OF CLAIM - EXCLUSION OF COUNTERCLAIM - JURISDICTION OF COURT - INTERPRETATION OF RULES 6-A TO 6-G OF ORDER VIII, C. P. C. - CIVIL PROCEDURE CODE (AMENDING ACT, 1976).
Fact of the Case:
The petitioners and the respondent are brothers, being the sons of the same father, Shri Nanak Chand, though from his different wives. The petitioners are from the first wife while the respondent is from the second wife of Shri Nanak Chand. Shri Nanak Chand died intestate in Sambat 1985 corresponding to 1928 AD. He left behind the petitioners and the respondent as his only legal heirs. The plaintiff wanted to get his l/3r-d share in this land separated. He accordingly applied to the Revenue Officer for partition. The defendants, that is, the present petitioners opposed that prayer of the plaintiff for partition on the plea that the plaintiff had no title to any part of the suit land. Since the question of title was raised in the partition proceedings, the Revenue Officer directed the plaintiff to get his title established in a civil court of competent jurisdiction.. This made the plaintiff to institute his suit out of which the present proceedings arise.
Finding of the Court:
The right to set up a counterclaim is available in every suit irrespective of its nature. A counterclaim within the contemplation of Rule 6-A may be based on any right or claim irrespective of its nature provided the cause of action in respect thereof has accrued to the defendant against the plaintiff before the filing of defence or before the time limited for delivering his defence expired, the counterclaim does not exceed the pecuniary limits of jurisdiction of/the court and there is some nexus between the claim of the plaintiff made in the suit and the claim set up by way of counterclaim.
Issues: 1. Whether the right to setup a counterclaim conferred on a defendant by Rule 6 of Order V1I1, C. P. C. is available only in a suit for recovery of money or in every suit irrespective of its nature ? 2. Whether the right or claim which may be pleaded by way of a counterclaim is restricted to the claim in money only or it can relate to any civil right or claim which can be enforced by an independent suit? 3. What are the options open to the court in dealing with a counterclaim once it has been lawfully pleaded on behalf of the defendant under Rule 6-A of Order VI if, C. P. C. ?
Ratio Decidendi: The language of Rule 6-A of Order VIII, C. P. C. places no restrictions or limitations on the nature of the suit in which a plea of counterclaim may be set-up. The use of the phrase "any right or claim" provides a clear indication that no curbs were intended to be placed on the nature of the claim or right which may be set up by the defendant by way of a counter claim. The words "against the claim of the plaintiff" as used in Rule 6-A, however, do appear to be of some significance in this connection. The use of these words, would suggest that, the right or claim that may be set up by way of a counterclaim should be against the claim of the plaintiff in the since that there must be some nexus between the claim made by the plaintiff in his suit and the claim set up by the defendant by way of counterclaim.
Final Decision: Revision allowed.
T. R. Handa, J,—This Revision Petition arises out of civil suit No. 123/1 of 1981 which has been instituted by the present respondent Asha Rani against the present petitioners and is presently pending in the court of the Sub-Judge, Nalagarh. The facts and circumstances which obliged the petitioners (original defendants) to approach this Court may. first be narrated.
2. The petitioners and the respondent are brothers, being the sons of the same father, Shri Nanak Chand, though from his different wives. The petitioners are from the first wife while the respondent is from the second wife of Shri Nanak Chand. Shri Nanak Chand died intestate in Sambat 1985 corresponding to 1928 AD. He left behind the petitioners and the respondent as his only legal heirs. According to the case of the plaintiff-respondent, Shri Nanak Chand at the time of his death owned land which measures 63 Bighas 16 Biswas in lieu of which the land in suit measuring 61 Bighas 9 Biswas, as detailed in the heading of the plaint was allotted during the settlement and consolidation proceedings which took place after the death of Shri Nanak Chand. The plaintiff wanted to get his l/3r-d share in this land separated. He accordingly applied to the Revenue Officer for partition. The defendants, that is, the present petitioners opposed that prayer of the plaintiff for partition on the plea that the plaintiff had no title to any part of the suit land. Since the question of title was raised in the partition proceedings, the Revenue Officer directed the plaintiff to get his title established in a civil court of competent jurisdiction.. This made the plaintiff to institute his suit out of which the present proceedings arise. The plaintiff in his suit had claimed a declaration to the effect that he was a co-sharer or co-owner in possession to the extent of l/3rd share in the land referred to above and that the defendants had no right to deny his title or to prevent the plaintiff from getting his l/3?;d share partitioned.
3. The petitioner-defendants in their written statement, inter alia, pleaded that the total estate left by their father, Shri Nanak Chand, comprised of an area of 95 Bighas 16 Biswas as detailed in para 5 (ii) of their written statement and not 63 Bighas 16 Biswas as claimed in the plaint. In lieu of the aforesaid land left behind by Shri Nanak Chand, land measuring 95 Bighas 14 Biswas as detailed in para 6 of the written statement had been allotted during the consolidation proceedings. The main plea of the defendants was that after the death of their father there had been some arrangement inter se parties in terms on which out of the estate of their father, land measuring 34 Bighas 5 Biswas at detailed in para 6 (i) fell to the share of the plaintiff while the remaining land measuring 61 Bigha 95 Biswas forming subject-matter of the suit fell to the share of the defendants. In addition to the various pleas raised by them in dependance of the suit, the defendants raised certain pleas by way of counterclaim on the basis of which they prayed for a decree of declaration to the effect that they were co-owner/co-sharers to the extent of 2/3rd share in the land measuring 35 Bighas 14 Biswas as detailed in para 6 (ii) of their written statement.
4. The written statement was fifed on 26-11-1981. The plaintiff was allowed thereafter to file rejoinder to the written statement. After such rejoinder had been filed issues were framed on 10-5-1982 which covered all the pleas raised in the pleadings including the pleas raised by way of counterclaim. It was thereafter on 3-8-1983 that the plaintiff made~ his application praying that the paragraphs in the written statement pertaining to counterclaim be deleted and the issues framed on the basis of such paragraphs be struck off. This application purports to have been made under Order VI, Rule 16, Order XIV, Rule 5 and section 151, C. P. C. The defendant (petitioner) opposed that prayer. The trial Court, however, vide its or
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