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Bombay High CourtIndian Cases

Hemraj Gyaniram Patle & Others vs Yamunabai Wd/O Fanda Pardhi & Others on 2 September 1996

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Bombay High Court
Hemraj Gyaniram Patle & Others vs Yamunabai Wd/O Fanda Pardhi & Others on 2 September, 1996
Equivalent citations: 1998(1)BOMCR134, 1997 A I H C 50
Author: S.B. Mhase
Bench: S.B. Mhase
ORDER

L. Manoharan, J.

1. The applicants herein are defendants 1 to 3 in Regular Civil Suit No. 79 of 1989 pending on the file of Civil Judge, Sr. Dn., Gondia. The non-applicants 1 to 7 instituted the said suit for declaration and consequential injunction. That suit was with respect to Gat No. 275. The applicants herein filed a written statement denying the allegations of the plaintiffs and in addition raised a counter-claim seeking an injunction restraining the plaintiffs No. 1 to 7 from interfering with their possession in Gal No. 276 and the land adjacent to it. Thereafter the plaintiffs moved an application under Order VIII, Rule 6-C of Civil Procedure Code for exclusion of the counter-claim. The trial Court by the impugned order allowed the said application. Aggrieved by the same, the defendants have come up in this civil revision. This matter when came up before the learned Single Judge, His Lordship felt that the decision in Chandrakant v. Man/Manikrao, 1988 Mah.L.R. 1488 relied on by the trial Court is in conflict with the decision of this Court in Manikchand v. Mulchand, 1994 Mh.L.J. 732. Therefore, the learned Judge directed the Registry to place the matter before the Hon’ble Chief Justice for constitution of a larger Bench to resolve the aforesaid conflict, and that is how this matter has now come up before this Bench.

2. The short question now arises for decision is as to the scope of Rule 6-A of Order VIII of Code of Civil Procedure. The same reads as under :

“6-A(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) …..
(3) …..
(4) …..
In the decision in Chandrakant v. Manikrao the Court relied on the decision in Jaswant Singh v. Smt. Darsan Kaur, . The learned Judge in Manikchand case 1994 Mh.LJ. 732, relies on the decisions in Pathrose Samual and another v. Karumban Parameswaran, , Suman Kumar v. St. Thomas School and Hostel, , and Bandu Sadale v. Shridhar P. Patil, 1992 Mh.L.J. 784, to conclude that where the plaintiff filed a suit for perpetual injunction against the defendant and the defendant raises a counter-claim seeking restoration of possession, the said counter-claim is maintainable. As noticed, unlike Rule 6(1) of Order VIII, Rule 6-A thereof states, a defendant in a suit may, in addition to his right of pleading of set-off, can also set up by way of counter claim against the plaintiff with respect to a cause of action which accrued to the defendant against the plaintiff either before or after filing of the suit, the only restriction to set up the same is, the cause of action for the same must have arisen before the defendant delivers his defence or before the time limited for delivering his defence has expired. Thus, on a plain reading of Rule 6-A of Order VIII, it is clear that there is nothing in the said Rule to restrict its operation to money suit only. Therefore, an interpretation restricting the scope of Rule 6-A to money suit cannot be sustained. The Supreme Court in two decisions has taken the view that irrespective of the fact whether the cause of action for counter claim had accrued to defendant either before or after the filing of the suit, a counter claim can be entertained. The only restriction is, the cause of action from which the counter claim should arise before the time fixed for filing of written statement expires. In the decision in Gurbachan Singh v. Bhag Singh & others, it is held that in a suit for injunction the counter-claim for possession by the defendant can be entertained under Order VIII, Rule 6-A(1) of Code of Civil Procedure. In the decision in Shri Jag Mohan Chawla & another v. Dera Radha Swami Satsang & others, , the Supreme Court while dealing with the scope of Order VIII, Rule 6-A(1) held, “In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words “any right or claim in respect of a cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action or the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit.” The aforesaid decision of the Supreme Court covers the point in issue and it is clear that the application by the plaintiff under Order VIII, Rule 6-C of Code of Civil Procedure is not maintainable and the same ought to have been dismissed. Incidentally we must observe that the decision in Chandrakant v. Manikrao, 1988 Mah.L.R. 1488 does not lay down the correct law and the decision in Manikchand v. Mulchand, 1994 Mh.L.J. 732 lays down the correct taw on the point. In view of the above, the civil revision application is allowed. There will be no order as to the cost.

3. Revision allowed.