IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 13436 OF 2018 (GM-CPC) BETWEEN:
SMT. DR KALAVATHI. L, W/O LATE GANGADHAR, AGED 56 YEARS, R/AT NO.418/4/05.
4TH CROSS, WILSON GARDEN, BANGALORE- 560 027.
… PETITIONER (BY SRI. N H RAVISHANKAR, ADVOCATE) AND:
1. SRI. SUMAN K R , S/O K V RAVINDRA, REP BY HIS GPA HOLDER SRI. K V RAVINDRAN, S/O LATE VENKATESHAIAH, AGED ABOUT 56 YEARS, MYTHEREYI APARTMENTS, 3RD FLOOR, NO.302, 3RD MAIN, 8TH CROSS, WILSON GARDEN, BENGALURU – 560 027.
2. SMT. L RENUKA, W/O SRI. B R SRINIVAS, AGED ABOUT 62 YEARS, PRESENTLY R/AT SWATHI, NO.168, ANTHROPOLOGICAL SURVEY OF INDIA, MAIN ROAD, NEAR ADICHUNCHANAGIRI, MAHA SAMSTANA MATT, BOGADI II STAGE, NORTH MYSORE- 570 026.
3. SMT. S BINDU, W/O SRI P V RAVISHANKAR, AGED ABOUT 43 YEARS, PRESENTLY R/AT ABIRAMI MAGNOLIA, NO.12, 7TH CROSS STREET, SASTRINAGAR, ADIYAR, CHENNAI- 600 028.
… RESPONDENTS (BY SMT. G V PADMAVATHI, ADVOCATE FOR R1;
SRI. NAGENDRA SHETTY, ADVOCATE FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.5157/2012 PENDING IN THE COURT OF THE X ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in an injunctive suit in O.S.No.5157/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 08.02.2018 a copy whereof is at Annexure-E whereby the learned trial judge having favoured respondent-plaintiffs’ application filed under Section 151 of CPC, 1908, has rejected the Counter Claim reserving liberty to the petitioner to file a separate suit. After service of notice, respondents having entered appearance through their counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is completely in agreement with the reasoning part of the impugned order more particularly paras 9 & 10 which read as under:
“9. This being so, as provided under Order 8 Rule 1 CPC, it was mandatory on the part of the defendant to file written statement either admitting or disputing the plaintiff’s case. In addition to this, there is a scope for the defendant to make a counter claim. Under the provisions of Order 8 Rule 6(A) CPC, defendant in addition to filing written statement denying the plaintiff’s case has made a counter claim and sought the prayer that the gift deed dated 24.09.2008 executed by Smt. L Renuka in favour of Smt. S.Bindu is null and void and not binding upon the defendant and similarly the sale deed executed on 31.01.2009 by Smt. S Bindu in favour of plaintiff also null and void and not binding. The defendant has impleaded Smt. L Renuka and Smt. S. Bindu as defendant No.2 & 3 in the written statement against whom plaintiff has no claim at all. Plaintiff has not filed suit against these two persons. The entire facts set up by the defendant in her written statement and counter claim goes to show that the cause of action accrued to her no way related to the cause of action accrued to the plaintiff. According to Order 8 Rule 6A CPC, counter claim can be made only against the plaintiff. When this being the position of law there is no scope for the defendant to include any third persons as defendants in her written statement. If at all defendant has got nay cause of action against Smt. S.Bindu and Smt. L. Renuka including the plaintiff, she is at liberty to file a separate suit.
10. It is well settled principle of law that in an injunction suit counter claim can be made by the defendant only against the plaintiff with regard to title and possession. Except this relief, no any counter claim for any other relief is maintainable, that too against third persons. Keeping in view of these reasons, I am of the opinion that the principle laid down in the judgment reported in AIR 2002 RAJASTHAN 144 by the defendant’s counsel is not at all applicable to the case on hand.”
3. The identical question having arisen before this Court, a Coordinate Bench in the case of M/s. Alliance University, Bengaluru Vs. Sudhir & Others, 2017 (5) KCCR 922 has observed as under:
“H. CIVIL PROCEDURE CODE, 1908- Order 8, Rule 6A-Counter claim- The same could be filed only against plaintiff and not against a third party to a suit or against other defendants.
Held: A bare perusal of Order VIII, Rule 6A of the CPC clearly reveals that the counter-claim is to be filed “against the claim of the plaintiff.” It can be filed with regard to “any right or cause of action accruing to the defendant”, but “against the plaintiff”. That the counter-claim can be filed only “against the plaintiff” is further borne out by Or. VII, Rules 6B to 6F of the CPC. Thus, the counter-claim cannot be filed against any other person or entity who is not the plaintiff. It is, indeed, trite to state that the purpose of permitting a counter-claim to be filed in a suit is to lessen multiplicity of litigation. Since the suit and the counter-claim are to be tried together, the common trial permits the same Court to decide the issues which may not only be common, but also may be proved by same or similar evidence. Therefore the counter-claim can be filed only qua the plaintiff. Of course, it is true that through the counter-claim the defendant is permitted to raise other cause of action, besides the ones raised by the plaintiff. But nonetheless, the focus of the other cause of action still has to be “against the plaintiff’, and not against others.”
In the above circumstances, this writ petition being devoid of merits, is dismissed.
It is needless to mention that if the suit is filed on the same cause of action, the interregnum period spent between the impugned order and this judgment is liable to be discounted while computing the period of limitation for filing the suit.
Costs made easy.
Sd/- JUDGE Bsv