Counter Claim--Verification of Contents--Counter-claim cannot be taken into consideration unless the contents thereof are verified

JUDGMENT

Mr. Amol Rattan Singh, J.:(Oral)- By this petition, the petitioner challenges the order of the learned trial Court dated 27.08.2018 (Annexure P-7), by which the petitioners’ application seeking that issue no. 4 be struck off, has been dismissed. (The issues framed have been reproduced in Annexure P-5 with the petition).

2. Issue no. 4 reads as follows:-

“Whether the defendant/counter claimant is entitled to a decree for recovery as prayed for? OPD/OCC.”

3. The contention is that in fact the counter-claim made by the respondent-defendant in his written statement, cannot be entertained at all, the contents thereof not having been verified and consequently, the defendant cannot be even referred to as a counter-claimant, as has been done in issue no. 4. In other words, the counter claim is sought to be rejected ab initio.

4. In the written statement filed by the respondent-defendant (copy Annexure P-3) there are seen to be 09 preliminary objections taken, with the reply on merits containing 05 paragraphs, immediately after which the counter-claim is contained in one detailed paragraph.

5. The verification that follows thereafter, reads as follows:-

“That on 16th day of September 2017 at Bahadurgarh that the contents of para nos. 1 to 8 of the preliminary objection and para nos. 1 to 5 of on merits are true and correct to the best of my knowledge and belief and last para is prayer clause.

Rahul Kaushil S/o Late Sh. Kishan

Chandra Sharma, R/o Flat no. 16, 2nd

Floor, R.S. Complex, Opp. Birla

Mandir, Mathura, U.P.”

6. Thus, the contention of learned counsel for the petitioner is that the verification being only in respect of paragraphs no. 1 to 8 of the preliminary objections and paragraph nos.1 to 5 of the reply on merits, there being no verification of what is contained in the counter-claim immediately following the last paragraph of the written statement, the counter-claim cannot be even taken into consideration.

7. He relies upon various judgments of the Supreme Court, one of which he specifically points to, in the case of R.P. Moidutty vs. P.T.Kunju Mohammed and another AIR 2000 SC 388, the relevant part of which (as contended in paragraph 35 thereof, reads as follows:-

“In our opinion, unless the defect in verification was rectified, the petition could not have been tried. For want of affidavit in required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for noncompliance with the mandatory provisions of law as to pleadings.”

8. Though initially learned counsel for the petitioner had submitted that the counter-claim in fact has to be treated to be a plaint and the pleadings therefore, need to be the same as are necessary for filing a plaint, Mr. Amit Jain, learned Amicus Curiae, who had been requested to assist the Court on the last date of hearing (as I was not at all convinced that notice should be issued to the respondent), points to Order VIII Rule 6-B of the Code of Civil Procedure, which reads as follows:-

“6-B Counter-claim to be stated--Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.”

9. He therefore submits that the counter-claim is to be only contained in the written statement and not by way of any separate pleading.

10. Therefore, any verification of the counter claim naturally has to be also contained in the verification of the contents thereof, at the end of the written statement.

11. Learned counsel for the petitioner however counters by pointing to the 4th proviso to Rule 6-A of Order VIII, which reads as follows:-

“The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

12. He thus submits that the counter-claim has to be treated as a plaint and therefor