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IN THE HIGH COURT OF PUNJAB AND HARYANA
LISA GILL, J.
Samay Singh - Appellant
Vs.
Mona Yadav and Another - Respondent
Regular Second Appeal No. 1759 of 2019
Decided on : 12-04-2019
Counter claim - Jurisdiction - Order 8 Rule 6A CPC - Harbans Singh and others versus Sant Hari Singh and others, (2009) 2 SCC 526, Rajni Rani and another versus Khairati Lal and others, (2015) 2 SCC 682 - Bhajan Singh versus Jasbir Kaur in RSA No. 581 of 2013 - 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) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plain and governed by the rules applicable to plaints.
Fact of the Case:
The appellant plaintiff filed a suit for permanent injunction to restrain the defendants from interfering with his possession of a property. The defendants claimed to be the lawful owners of the property and filed a counter claim seeking possession of the property.
Finding of the Court:
The trial court dismissed the plaintiff's suit and allowed the counter claim filed by the defendants. The appellate court upheld the decision, stating that a single appeal against the dismissal of the suit and the allowance of the counter claim was not maintainable.
Issues: The main issues were whether the single appeal filed by the appellant was maintainable, and whether the principle of res-judicata applied to the proceedings.
Ratio Decidendi: The counter claim is to be treated as a separate suit and has the same effect as a cross-suit, enabling the court to pronounce a final judgment on both the original claim and the counter-claim. The judgment in Harbans Singh's case and the decision in Bhajan Singh versus Jasbir Kaur established that a single appeal challenging the judgment and decree in both the suit and the counter-claim would not be sustainable.
Final Decision: The appeal was dismissed, and the judgment and decree of the appellate court were upheld.
LISA GILL, J.
1. This appeal has been filed by the appellant plaintiff challenging judgment and decree dated 11.03.2019 passed by the learned Additional District Judge, Gurugram inasmuch as the plaintiff’s appeal against the judgment and decree dated 20.03.2018 passed by the learned Civil Judge (Junior Division), Gurugram has been dismissed on the ground that a single appeal against the judgment and decree 20.03.2018 passed by the learned Civil Judge (Junior Division), Gurugram dismissing the plaintiff’s suit and allowing the counter claim filed by the defendants is not maintainable. It is prayed that impugned judgment and decree dated 11.03.2019 passed by the learned Additional District Judge, Gurugram be set aside and the matter be remanded with a direction to the learned First Appellate Court to decide the matter afresh on merits.
2. Brief facts necessary for the adjudication of the case are that suit for permanent injunction was filed by the appellant plaintiff for restraining defendants from interfering in his peaceful possession over the suit property, as detailed in the plaint, by resorting to unlawful or forceful means and not to disturb his possession except in due course of law. It is pleaded that the plaintiff alongwith his family has been in peaceful possession of the suit property since 1992 after occupying the vacant land. He raised construction over this land in 1992 and constructed two rooms and a concrete boundary wall alongwith installation of hand pump for water. Plaintiff, it is stated, started using the property for residential purposes as well as running a milk dairy continuously and peacefully since 1992. Sukhbir Singh and Rambir Singh are alleged to have approached the plaintiff in 1992 and proclaimed themselves to be the owners of the land. They were rebuked by the plaintiff and were asked not to interfere in the peaceful possession of the property over which he had raised construction. It is claimed that the plaintiff alongwith his family was enjoying uninterrupted possession over the property to the exclusion of all others since 1992. Few months prior to the filing of the suit, defendants respondents visited the suit property and informed him that they were in the process of purchasing the property from the previous owners on which the plaintiff apprised them that Sukhbir Singh and Rambir Singh had been asked not to interfere in the plaintiff’s peaceful possession over the suit property till date. Children of the plaintiff, it is pleaded, were admitted in different schools since 1992 onwards and permanent address in the school records is the address of the property in question. Ration card and voter card of the plaintiff mention the said address. In the month of October, 2009 defendants started threatening the plaintiff, claiming to be the owners of the property in question. Despite genuine request of the plaintiff, they did not desist. Hence, the suit was filed.
3. Respondents defendants resisted the suit. In the written statement filed by them various preliminary objections were raised. It is stated that the plaintiff is a trespasser who raised a false plea of raising construction and installation of hand pump etc. on the suit property. It is further stated that the plaintiff was guilty of concealment of material facts.
4. Counter claim was also filed by the defendants claiming to be the lawful owners of the suit property, thus, claiming the right to recover possession of the property in question. It is pleaded that the property in question was owned and possessed by one Muni Lal, who sold land measuring 7 gathe x 31/2 gathe to Rambir vide registered sale deed dated 15.06.1984. Mutation in this respect was sanctioned on 31.11.1984 (serial No. 10317). Muni Lal further sold a plot to Sukhbir Singh vide registered sale deed dated 15.06.1984 bearing No. 2610 and mutation in this respect was sanctioned on 30.11.1984 as well. Possession of the property was delivered by Muni Lal to the vendees Rambi
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