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IN THE HIGH COURT OF ORISSA
K.R. Mohapatra, J.
Debi Prasanna Pattanaik (Since Dead) - Appellant
Versus
Amulya Prasad Nayak - Respondent
CMP No. 90 of 2018
Decided On : 07-11-2023
CIVIL PROCEDURE - COUNTER-CLAIM EXCLUSION - ORDER VIII RULE 6-A, 6-C CPC - The court discussed the provisions of Order VIII Rule 6-A and 6-C of the CPC, emphasizing that a counter-claim must relate to the claim made by the plaintiffs. The court interpreted these provisions to conclude that the counter-claim for partition and declaration of adoption was beyond the scope of the eviction suit, leading to the decision to exclude the counter-claim.
Fact of the Case:
The Plaintiffs filed a suit for eviction of the Defendant from specific rooms in a property, while the Defendant filed a counter-claim for partition of the entire property and to be declared as the adopted son of the Plaintiffs' parents. The trial court admitted the counter-claim, which the Plaintiffs later sought to exclude.
Finding of the Court:
The court found that the counter-claim was not related to the eviction suit, as it sought relief beyond the scope of the Plaintiffs' claim. The court determined that the trial court erred in not excluding the counter-claim, as it did not pertain to the subject matter of the original suit.
Issues: Whether the counter-claim filed by the Defendant was maintainable in light of the Plaintiffs' eviction suit and whether it related to the same subject matter.
Ratio Decidendi: The court held that a counter-claim must be directly related to the claim made by the plaintiffs. Since the counter-claim sought partition and declaration of adoption, which were not part of the eviction claim, it was deemed not maintainable under Order VIII Rule 6-A CPC.
Final Decision: The court set aside the trial court's order and excluded the Defendant's counter-claim, allowing the Plaintiffs' CMP. The Defendant was permitted to file a separate suit for the relief sought in the counter-claim if permissible by law.
JUDGMENT
K.R. Mohapatra, J.
This matter is taken up through hybrid mode.
2. Order dated 16th December, 2017 (Annexure-3) passed by learned 4th Additional Civil Judge (Senior Division), Cuttack in C.S. No.652 of 2013 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order VIII Rule 6-C CPC to exclude the counter-claim filed by the Defendant-Opposite Party, has been rejected.
3. Mr. Dey, learned counsel for the Petitioner submits that the suit has been filed for eviction of the Defendant-Opposite Party. On appearance, the Defendant filed his written statement along with the counter-claim seeking for partition of Schedule-A property claiming 1/3rd share in the same and to declare him as the adopted son of Bhajakrushna Pattanaik and Harapriya Pattanaik. The counter-claim was admitted on 13th April, 2017 by learned trial Court. Subsequently, the Plaintiffs filed an application under Order VIII Rule 6-C CPC to exclude the counter-claim. Vide order dated 16th December, 2017 (Annexure-3), learned trial Court dismissed such application. Hence, this CMP has been filed.
4. Mr. Dey, learned counsel for the Petitioners submits that the relief claimed in the counter-claim does not relate to the suit property. Hence, the same does not come under the purview of Order VIII Rule 6-A CPC. As such, learned trial Court committed an error of law in refusing to exclude the counter- claim filed by the Defendant-Opposite Party.
5. It is submitted that the suit has been filed for eviction of the Defendant from 'B' Schedule property, i.e., two rooms of the ground floor of the double storied building standing over Schedule-A property. But, the Defendant has claimed partition of the entire Schedule-A property. Further the Defendant has claimed for a declaration that he is the adopted son of Bhajakrushna Pattanaik and Harapriya Pattanaik. Such a prayer is beyond the purview of the claim made in the plaint. These material aspects were lost sight of by learned trial Court while adjudicating the petition. Hence, he prays for setting aside the impugned order under Annexure-3.
6. In support of his case, Mr. Dey, learned counsel for the Petitioners relied upon the case of Satyender and others -v- Saroj and others, reported in 2022 SCC OnLine SC 1026, wherein it is held as under:
'18. xxx xxx xxx [6A. Counter-claim by defendant- xxx xxx xxx (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints 19. A counter claim can be set up only 'against the claim of the plaintiffs'. Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs. It is true that a counter claim can be made by the defendant, even on a separate or independent cause of action (Jag Mohan Chawla v. Dera Radha Swami Satsang).'
7. Learned trial Court while adjudicating the matter, relied upon the decision in the case of Datta Bandu Sadale and others -v- Sridhar Payagonda Patil and others, reported in AIR 1992 Bombay 422, which has no application to the case at hand. Hence, he prays for setting aside the impugned order under Annexure-3 and to exclude the counter claim filed by the Defendant.
8. Mr. Patra, learned counsel for the Opposite Party submits that the counter-claim has been admitted since 13th April, 2017 and the petition to exclude the counter-claim was filed belatedly. At the time of admission of the counter-claim, the Plaintiffs had not raised any objection. But, subsequently, an application under Order VIII Rule 6-C CPC was filed to exclude the counter-claim on the ground that the relief claimed therein is not the subject matter of dispute in the suit. It is his submission that the Defendant has only claimed for partition of Schedule-A property, which is also Schedule-A in the plaint. In order to get the relief of partition suit
A counter-claim must directly relate to the claim made by the plaintiffs; if it does not, it is not maintainable under the Civil Procedure Code.
Counter claims in partition suits must be directed against the plaintiff; co-defendants cannot initiate claims solely against each other without notice, as all parties have interchangeable roles.
A counterclaim in a partition suit must be against the plaintiff; failing to notify co-defendants constitutes a violation of natural justice, rendering any ex parte decree unsustainable.
The right to file a separate suit for partition in respect of a property not included in the original suit is not barred, and the principle embedded in Order II Rule 2 of CPC cannot be stretched to c....
A counter claim must relate to the plaintiff's claims; dissimilarity in cause of action renders it non-maintainable.
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