A counter claim directed solely against the co-defendants cannot be maintained, and the language of the law is plain and unambiguous. The intention of the Legislature is to be gathered from the language used.

JUDGMENT :

A.K.Rath, J.

The seminal question that hinges for consideration of this Court is as to whether a defendant can file a counter claim against a co-defendant ?

2. The dispute lies in a narrow compass. The facts need not be recounted in detail. Suffice it to say that the plaintiff-opposite party no.1 laid the suit for partition before the learned 1st Addl. Civil Judge (Senior Division), Cuttack. Defendant nos.1 and 4 to 10-petitoners herein filed a joint written statement. Defendant no.14 filed a written statement along with counter claim. The counter claim is confined to defendant nos.7 and 8 only. The suit scheduled properties in the counter claim are different from that of the plaint. While matter stood thus, defendants-petitioners filed an application under Or.VIII R.6-C CPC for exclusion of the counter claim. Defendant no.14 filed objection. Learned trial court rejected the same on 7.5.2018. This petition seeks to laciniate the said order.

3. Heard Mr. D. P. Mohanty, learned counsel for the petitioners and Mr. B. N. Bhuyan, learned counsel for the opposite party no.6.

4. Mr. Mohanty, learned counsel for the petitioner submitted that the property described in the counter claim is not the subject-matter of the suit. Or.VIII R.6-C CPC provides that the defendant can set up a counter claim against the claim of the plaintiff in respect of the cause of action accruing against the plaintiff. Elaborating submissions, he contended that the defendant no.14 has no claim against the plaintiff. The counter claim has been filed against the co-defendant nos.7 and 8. He further submitted that when defendant no.14 in her counter claim admits that the property mentioned in the counter claim is the joint family property of defendant nos.7, 8 and 14, which is not the subject-matter of the suit and the plaintiff has no connection with the same, the counter claim in respect of the different properties other than the suit properties is not maintainable. To buttress the submission, he placed reliance on the decisions of this Court in the case of Indumati Sahu Vrs. The Secretary, Rotary Club, Puri & Anr., (2017) 1 ILR(Cut) 463 and Purna Chandra Biswal Vrs. Kiran Kumari Brahma, (2017) 1 ILR(Cut) 805.

5. Mr. Bhuyan, learned counsel for the opposite party no.6 submitted that in a suit for partition, plaintiffs are the defendants and vice versa. Thus the counter claim can be laid against the co-defendants. To give quietus to the issue and avoid multiplicity of proceedings, the left out property can be included in the counter claim. Or.VIII R.6-C CPC is not a bar to file any counter claim against the co-defendant. He placed reliance on the decision of the apex Court in the case of Jag Mohan Chawla and another Vrs. Dera Radha Swami Satsang and others, (1996) AIR SC 2222.

6. R.6-A of Or.8 CPC provides for counter claim by defendant. R.6-C provides for exclusion of counter claim. R.6-A(1) and R.6-C of Or.8, which are relevant, are quoted hereunder :

6-A.Counter-claim by defendant -

(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) to (4) xxx xxx xxx.

6-C. Exclusion of counter-claim - Where any defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counter-claim may be exc