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M.Y.EQBAL
Ganesh Tiwari – Appellant
Versus
Ramakant Tiwari – Respondent
Key Points: - The judgment discusses counter-claims under Order VIII Rule 6 and its amendments (Rules 6A-6D) and treats a counter-claim as a plaint, with cross-suit implications within the same suit (!) - A defendant may plead any right or claim by way of counter-claim in respect of a cause of action accruing to the defendant against the plaintiff before the defence is filed, within the court’s pecuniary jurisdiction (!) - The counter-claim has the same effect as a cross-suit and can be tried in the same suit without relegating to a separate suit (!) - The plaintiff may move to exclude a counter-claim under Rule 6-C before issues are settled, and the court may order exclusion or otherwise (!) - The case cites that the counter-claim can include independent causes of action and need not be connected to the plaintiff’s original cause of action, subject to procedural requirements (pleading, court-fee, etc.) (!) - The High Court held that excluding a properly pleaded counter-claim on the basis that the property is in different names or not joint family property is not a valid ground to disallow the counter-claim; counter-claims can be decided in the same suit (!) - The writ petition resulted in allowing the counter-claim and setting aside the impugned order (!)
M.Y. Eqbal, J.
1. Petitioners who are Defendant Nos. 1 and 2 have challenged the order dated 13.9.2004 passed by Munsif, Garhwa in Partition Suit No. 22/2003 whereby he in purported exercise of power under Order 8 Rule 6 CPC has disallowed the so called counter claim made by the petitioners in the written statement.
2. Plaintiff/respondent No. 1 instituted the aforesaid suit for a preliminary decree in respect of 1/6th share of the properties fully described in Schedule A, B, C, D and E of the plaint.
3. Plaintiffs case inter alia is that he and the defendants are the sons and daughters of late Bateshwar Tiwari who had acquired Schedule-A land. Schedule-B lands were acquired by him through Partition Suit No. 24/1923. Schedule C lands were acquired by the mother of the parties, whereas plaintiff and defendant Nos. 1, 2 and 3 acquired Schedule-D property. It was alleged that Pucca Well described under Schedule F was constructed by plaintiff from his own earnings. Bateshwar Tiwari died in the year 1993 and his wife died in the year 1995 and the suit properties possessed by the plaintiff defendant Nos. 1, 2 and 3 only since defendant Nos. 4 and 5 have been married and are well sett
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