The main legal point established is that a counter claim must adhere to the provisions of Order VIII Rule 6-A of the CPC, including being filed against parties to the original suit and being properly stamped for court fee.

Vinod K.Sharma, J.

1. This revision petition under Article 227 of the Constitution of India read with Section 151 CPC is directed against the order dated 23.2.2008 passed by the learned Civil Judge (Jr. Divn.) Kapurthala attached as Annexure P-5, whereby the counter claim filed by the petitioner has been held to be not maintainable.

2. The plaintiff-respondent No. 1 filed a suit against the petitioner for mandatory injunction directing the petitioner herein to deliver vacant possession of house No. 44 situated at Mohalla Kaimpura, Kapurthala fully detailed and described in the site plan attached with the plaint. In the suit the arrears of licence fee and damages for use and occupation were also claimed.

3. On notice having been given, the petitioner filed a detailed written statement and thereafter a counter claim was also filed seeking declaration that he was exclusive owner in possession of the superstructure raised over the land underneath the house bearing No. 55, situated in Mohalla Kaimpura, Kapurthala. In the alternative the petitioner claimed an amount of rupees five lakh, which is said to have been spent by him on construction, renovation, reconstruction of the house in dispute. In the counter claim filed by the petitioner, beside the plaintiff he impleaded seven other persons as co-defendants.

4. The learned trial Court came to the conclusion that the reading of Order 8 Rule 6-A of the CPC would show that the counter claim can be filed only in respect of the cause of action accrued to the defendant against the plaintiff and, thus, the counter claim could be filed only qua the parties to the suit and the persons who were not party to the original suit cannot be added as defendants in the counter claim.

5. The learned trial Court further held that the petitioner was claiming a relief of rupees five lakh from the petitioner-plaintiff by way of mandatory injunction but advalorem Court Fee was not paid.

6. The petitioner claimed that by way of counter claim it was permissible to the defendant to claim any right in respect of any cause of action which had accrued to him even though it is independent of the cause, action as claimed by the plaintiff. For this purpose reliance was placed on the judgment of the Honble Supreme Court in the case of Jagmohan Chawla and Anr. v. Dera Radha Swami Satsang and Ors. 1996 Supreme Court Cases 521 (S.C.).

7. The learned court below came to the conclusion that as parties to the counterclaim are different from the original suit, the same was not maintainable and consequently the counter claim was dismissed.

8. Mr. Padam Jain, learned Counsel appearing on behalf of the petitioner by placing reliance on the judgment of the Honble Bombay High Court in the case of Teofilo Barreto v. Sadas G. Nasnodkar and Ors. 2007 (4) R.C.R. (Civil) 275 contended that as the counter claim has to be treated as a separate suit and he could seek the relief in the suit filed by the plaintiff against him. The contention of the learned Counsel for the petitioner was that once it has to be treated as a separate suit in that even he was entitled to add the persons against whom he had claimed though they were not party to the original suit. However, this plea of the petitioner cannot be accepted. The Honble Bombay High Court has nowhere laid down that by way of counter claim it is open to the defendant to seek claim against the persons who are not party to the suit filed by the plaintiff. Para 33 of the judgment of the Honble Bombay High Court on which reliance was placed reads as under:

33. In this connection, it may also be noted that all the provisions of a plaint are made applicable to a counter-claim. In the decision reported in 1996 Kerala Law Journal 722, Sarojini Amma v. Dakshyuni Amma, the question that came for consideration before the Kerala High Court was, whether in counter-claim, application for impleadment under Order 1 Rule 10, Civil Procedure Code could be filed. In that case, plaintiff had not