® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF SEPTEMBER, 2015 B E F O R E THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.49393/2014 (GM-CPC) BETWEEN:
COTTAGE INDUSTRIES EXPOSITION LTD., NO.3, (OLD NO.5) CUNNINGHAM ROAD (ALSO CALLED SAMPANGI RAMASWAMY STREET) BANGALORE-560 052 A REGISTERED COMPANY REPRESENTED BY ITS DIRECTOR.
(BY SRI P.D. SURANA, ADV.) AND:
SMT. BINDU NEELAKANTA (ALSO KNOWN AS B.E. BINDU) AGED ABOUT 40 YEARS D/O LATE SRI L.H. ESHWAR MURTHY NO.13, 1ST MAIN ROAD, NEHRU NAGAR BANGALORE-560 020.
(BY SRI UDAYA HOLLA, SENIOR ADV. FOR SRI VIVEK HOLLA, ADV. FOR C/R) ... PETITIONER ... RESPONDENT THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 26.07.2014 MADE ON I.A.NO.3 PRODUCED AT ANNEXURE-H IN O.S.NO.5435/2012 ON THE FILE OF THE COURT OF THE XII ADDITIONAL CITY CIVIL & SESSIONS JUDGE (CCH-27) BENGALURU, TO THE EXTENT TO WHICH IT IS HELD BY THE TRIAL COURT THAT THE COUNTER CLAIM OF THE DEFENDANT IN THE PRESENT FORM IS NOT MAINTAINABLE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The respondent, as the plaintiff, has filed the suit, in respect of land and building situated at No.3 (Old No.5), Cunningham Road (also called Sampangi Ramaswamy Street), Bengaluru, to pass decree against the petitioner / defendant. Written Statement and counter-claim, under Order VIII Rule 6-A of the Civil Procedure Code, 1908 was filed by the petitioner. The respondent filed application under Order VIII Rule 9 read with S.151 of CPC for grant of leave to file rejoinder statement to the written statement and counter-claim. The plaintiff filed I.A.3, under Order VII Rule 11(b) and (c) read with S.151 of CPC, to direct the defendant i.e., plaintiff in the counter- claim, to properly value the counter-claim and pay sufficient court fee on the counter-claim. Another I.A. was filed, under Order VIII Rule 1 read with S.151 of CPC, to permit the plaintiff i.e., the defendant in the counter-claim, to file written statement and to receive the same on record by condoning the delay.
2. The Trial Judge, by an order dated 26.07.2014, having disposed of I.A.3, holding the counter-claim of the defendant ‘as not maintainable’, this petition was filed to set aside the said order.
3. The Trial Judge, as per the impugned order, has held the counter-claim as not maintainable, mainly on the ground that:
(a) The defendant cannot split the cause of action arising out of the alleged agreement in respect of the entire property and set up counter-claim in respect of a portion of the property and set up counter-claim in respect of a portion of the property allotted to the share of the plaintiff as described in the schedule B of the plaint, by observing that the cause of action for the suit having arisen out of a lease agreement dated 03.03.1979, counter-claim based on another cause of action i.e., with reference to the agreement of sale dated 20.02.1980 is not maintainable.
(b) The counter-claim only in respect of the suit schedule ‘B’ property as against the plaintiff, without impleading other holders of the suit schedule A property is not maintainable.
(c) Counter-claim is bad for non joinder of necessary parties and non inclusion of the entire property under the alleged agreement of sale.
(d) The defendant should file separate suit in respect of the entire suit schedule ‘A’ property i.e., for specific performance of the alleged agreement against all the owners of the schedule ‘A’ property.
4. Sri P.D. Surana, learned advocate, contended that the Trial Judge has fallen in grave error in holding the counter-claim ‘as not maintainable’, that too while deciding I.A.3, under Order VII Rule 11(b) and (c) read with S.151 of CPC, filed by the original plaintiff, to direct the defendant to correctly value the counter-claim and pay sufficient court fee. He submitted that the impugned order suffers from jurisdictional error and calls for interference.
5. Sri Udaya Holla, learned Senior Advocate, on the other hand, contended that as adjudication of the counter-claim is likely to prolong the trial of the suit, the Trial Judge is justified in passing the impugned order. In support of the submission reliance was placed on the decision in ISKCON (MUMBAI) Vs. ISKCON (BENGALURU), 2007 (5) KLJ 440.
6. Ejectment decree and consequential reliefs has been sought in the suit filed in respect of the plaint schedule ‘B’ property, which forms a portion of the plaint schedule ‘A’ property. Plaintiff and the other legal heirs of late L.H. Ishwara Murthy have partitioned amongst themselves the schedule ‘A’ property, as per the final decree for partition dated 21.09.2007. Under the said partition, portion(s) of schedule ‘A’ property having fallen to the share of respective plaintiff(s), relief in respect of schedule ‘B’ property has been sought by the institution of separate suits, which are pending on the file of one and the same Court. The defendant is common in all the suits. In the counter-claim(s) filed, relief in respect of the plaint schedule ‘A’ property has been sought by the defendant.
7. The provisions of Rule 6-A of Order VIII CPC, was inserted by Civil Procedure Code (Amendment) Act, 1976. The object of enacting the said provision is to reduce the multiplicity of proceedings by providing that cause of action for the suit and counter-claim can be clubbed together and disposed of by common Judgment.
8. In GURBACHAN SINGH Vs. BHAG SINGH AND OTHERS, (1996) 1 SCC 770, Apex Court, while holding that in a suit for injunction, counter-claim for possession also can be entertained by operation of Order VIII Rule 6-A of CPC, has held as follows:
“3. It is true that Rule 6-A(a) was introduced by the Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter-claim or set-off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the proceedings, right to the defendants to raise the plea of set-off in addition to a counter- claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter-claim or set-off had accrued to defendant either before or after the filing of the suit. The limitation was that the counter-claim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time-limit for delivering the written statement has expired, whether such counter-claim is in the nature of a claim for damages or not. Further limitation was that the counter-claim should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying the counter-
claim, pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter-claim beyond its pecuniary jurisdiction…..”
(emphasis is supplied) 9. In JAG MOHAN CHAWLA AND ANOTHER Vs. DERA RADHA SWAMI SATSANG AND OTHERS, (1996) 4 SCC 699, Apex Court, while considering the questions, (i) Whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? and (ii) whether counter-claim can be made on different cause of action? has held as follows:
“5. ………..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 accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of 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 counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needles protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit……”
(emphasis is supplied) 10. In STATE BANK OF INDIA Vs. RANJAN CHEMICALS LTD. AND ANOTHER, (2007) 1 SCC 97, while considering the question “whether cause of action to be put in a suit by a company can be considered to be in the nature of set off or a counter-claim within the meaning of S.19 of the Recovery of Debts Act, with reference to the provisions under Order VIII Rule 6-A of CPC”, it has been held by the Apex Court as follows:
“6. Even otherwise, after the amendment of Order 8 Rule 6-A of the Code of Civil Procedure by Act 104 of 1976, for maintaining a counterclaim, the cross-action need not even arise out of the same cause of action or be intrinsically connected with the cause of action sued upon. Any right or claim in respect of a cause of action accruing to the defendant against the plaintiff can be made the subject-matter of a counterclaim. Section 19(8) of the Act is also on the same lines. Therefore, there can be no objection to treating a claim in favour of the Company arising out of the loan transaction and/or rehabilitation package as a counterclaim in the application filed by the Bank before the Debt Recovery Tribunal.”
(emphasis is supplied) 11. In the suit pending before the Trial Court, the plaintiff has sought passing decree of ejectment against the petitioner herein, in respect of plaint schedule ‘B’ property, which is part and parcel of the plaint schedule ‘A’ property. The petitioner herein i.e., the sole defendant in the suit, has filed written statement and counter-claim and has sought specific performance of the agreement in respect of the schedule ‘A’ property, which encompasses the schedule ‘B’ property. In the facts and circumstances of the present case, the decision on which Sri Udaya Holla, learned Senior Advocate, placed reliance, noticed in para 5 supra, has no application. Counter-claim made by the defendant is admissible and can be adjudicated, in view of the position of law declared by the Apex Court, in the decisions noticed supra.
12. In view of the categorical declaration of law by the Apex Court, in the decisions noticed supra, the defendant can claim any property by way of counter-claim in respect of any cause of action that has accrued to it, even though it is independent of the cause of action averred by the plaintiff and matter can be adjudicated without relegating the defendant to file a separate suit i.e., to avoid multiplicity of proceedings, particularly when the dispute is between the same parties. The approach to the matter by the Trial Judge, in the present case, is fallacious and he has committed jurisdictional error in holding the counter-claim ‘as not maintainable’. The impugned order is illegal and perverse.
, In the result, the petition is allowed and the impugned order is set aside. Counter-claim filed by the petitioner is held as admissible for consideration and decision. 30 days’ time is allowed to file the written statement i.e., to the counter-claim. The Trial Judge is directed to consolidate all the suits, expedite the trial and decide the matters, within a period of one year from the next hearing date. The issues be framed before the end of October 2015. The plaintiff’s evidence be adduced and completed before the closure of Court for Winter Vacation 2015 and the evidence of the defendant/ cross-objector be adduced and closed before 30th April 2016. The rebuttal evidence of the plaintiff(s), if any, be adduced and completed before 30th June 2016 and suit/cross-objection decided within the aforesaid period. For the said purpose, learned Trial Judge shall refuse any unnecessary prayer for adjournment by either of the parties.
No costs.
Sd/- JUDGE sac*