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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
RSA No.2643 of 2012(O&M)
Soma Devi
v.
Kashmiri Lal & Anr.
{Decided on 27/07/2017}
Hence a bare perusal of the claim of Order VIII Rule 6A to 6G shows that it is only the plaintiff; against whom a counter claim is permissible. It is only the plaintiff who has been given a right to file reply to the counter claim. It is only the plaintiff who can make an application for rejection of the counter claim on the ground that the defendant may file a separate suit and it is only the plaintiff, on whose default to file the written statement, the Court can pass a judgment against the plaintiff and it is only the plaintiff against whom any balance, which is found due after adjusting the counter claim, can be granted to the person who is filing the counter claim.
In this entire scheme, nowhere a co-defendant is contemplated as a person required to suffer a counter claim against him by another co-defendant. In case defendant files a counter claim against a co-defendant then co-defendant has not been given any right to file written statement to the counter-claim under Order VIII Rule 6A. Nor has a defendant been given any entitlement to make an application for exclusion of a counter claim filed by co-defendant against him. Nor the default of a defendant to file written statement in counter claim by a co-defendant, is prescribed as a ground for pronouncing a judgment against such a co-defendant.
Even the balance of the relief after adjustment of counter claim is not contemplated to be granted against a co-defendant by the CPC. Therefore, expressely, no provision is made for permitting a counter claim by a defendant against his co-defendant. Even impliedly the provision for permitting counter-claim against co-defendant cannot be read into the statute book for the simple reason that such an implied presumption would go totally in contravention with the other provisions of the Order VIII Rule 6A to 6G.
If any counter claim by the defendant against his co-defendant is entertained by the Court then the Court would be finding itself in an absurd situation where the Court would not be authorised to permit filing written statement against the counter claim by the co-defendant, the Court would not be authorised to permit a defendant to move an application for exclusion of the counter claim by the co-defendant and the Court would not be authorised to grant relief against co-defendant.
For assuming all these powers with court, again an implied presumption will have to be made that Court has all these powers because it has permitted the counter claim to be filed against a co-defendant. This much of interpolation and reading into the statute which is neither required nor is necessary and, rather, is prohibited by the law of interpretation.
Any ommission to legislation a point has to be presumed to be intentional on the part of the legislature or the rules framing authority. Any defendant has, otherwise, full right to file a separate suit against a co-defendant for any cause of action. Therefore, no such interpolation of words and phrases in Order 8 Rule 6A to 6G is called for or permissible. Hence it is held that a defendant cannot file a counter claim against a co-defendant under any circumstances. Order VIII Rule 6A to 6G provide for and conceive of only a counter claim to be filed by the defendant against the claim of the plaintiff. Hence the counter claim against the co-defendant in the present case was not maintainable.
Mr. Rajbir Sehrawat, J. (Oral):- This is the second appeal filed by defendant No. 1 in the suit against a judgment and decree whereby the lower Appelalte Court has reversed the decree passed in her favour by the Trial Court in her counter claim.
2. For the reference in the present appeal, the parties would be referred to as the plaintiff and defendant No. 1 and defendant No. 2 as described in the original plaint.
3. The fact of the, case as mentioned in the judgment of the lower Appellate Court, are that the suit was filed by one Baljeet against Soma Devi, defendant No.1 (the present appellant) and Kashmiri Lal, defendant No. 2 (respondent No. 1 in the present appeal) alleging that he was owner in possession of the residential house situated at Sodagran Mohalla, Ravidass Nagar, Thanesar, District Kurukshetra. The patnala (water outlet) and the ventilator of the house of the plaintiff open on the back side in a common ‘gher’ (common yard). It was further pleaded that on the southern side there was house of defendant No. 1 and on the eastern side there was house of defendant No. 2. It was further pleaded that the ventilator and the water outlet of his house in the common yard were in existence for the last 50 years. It was further pleaded that defendant No. 1; in collusion with defendant No. 2 wanted to grab whole of the common yard shown in red colour in the site plan attached in the plaint. It was further pleaded that the defendants had constructed two pillars and they wanted to close down the ventilator and the water outlet of the plaintiff towards the common yard. Therefore, the injunction was prayed for.
4. Defendant No. 2 filed written statement on 13.06.2006 wherein he claimed that the plaintiff had not come to the Court with clean hands. It was further pleaded that the alleged portion of common yard was exclusively in the use of defendants No. 1 and 2. It was further pleaded that a wall is existing between the house of defendant No. 1 and defendant No. 2 and their houses were adjoining each other. It was further claimed by defendant No. 2 that just to harass him and to grab the suit land the plaintiff has moved the Court without any cause of action. The existence of any common yard was denied by defendant No. 2. It was further claimed that the plaintiff had no right to create nuisance and that defendant No. 2 had every legal right to use the property in the manner he liked; being full owner of the suit property. Defendant No. 2 denied the existence of ventilator and the water outlet as claimed by the plaintiff. Accordingly, he prayed for dismissal of the suit.
5. After defendant No. 2 had filed written statement then defendant No. 1 filed her written statement on 24.08.2006 wherein she also claimed that the plaintiff was neither owner in possession of the suit property nor was there a common yard. It was further claimed by defendant No. 1 that the ventilator and the water outlet has been created by the plaintiff forcibly and illegally without any right, title or interest in the suit property. Earlier her mother was residing alone in the house adjoining this alleged common yard and defendant No. 1 was away from home due to work. Taking advantage of this situation the plaintiff had installed this ventilator and the water outlet. It was claimed by defendant No. 1 that previously there was ‘Chabutra’ being used by Smt. Bhagti Devi widow of Daulat Ram son of Hira Lal, resident of House No. 2889/5, Ravi Dass Nagar, Thanesar. However, that house alongwith ‘Chabutra’ was purchased by the mother of defendant No. 1. The defendant No. 1 and her mother were in possession of the suit property in question. Later on, the house purchased by mother of defendant No. 1 was gifted by her to defendant No. 1. Hence, defendant No. 1 was the owner in possession of the suit property. She also claimed that even defendant No. 2 had raised construction of wall of approximately 2.5 feet in width and 9.3 feet in length. It was further claimed
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