1. Heard Sri Satya Prakash, learned counsel for petitioner and Sri Rajesh Ji Verma for respondents.
2. This writ petition under Article 227/226 of the Constitution of India is directed against the order dated 17.1.1995 (Annexure 6 to writ petition) passed by 2nd Addl. Civil Judge, District Kanpur Dehat directing for transposition of defendant no. 2 as plaintiff and to permit him to continue with Original Suit No. 162 of 1990 which stood settled otherwise due to compromise between plaintiff and defendant no. 1 and the order dated 8.11.1996 passed by 8th Addl. District Judge, Kanpur Dehat rejecting revision of petitioners against the aforesaid order.
3. One Maharaj Singh son of Kalika Singh, respondent no. 4, and Late Vakil Singh i.e. father of respondents 5 and 6 filed two suits for cancellation of sale deeds dated 5.11.1988 and 14.6.1988 and for grant of permanent injunction restraining the defendant-petitioners or their agents from disturbing the possession of plaintiffs. The two suits were registered as Original Suits No. 162 of 1990 and 163 of 1990. Both the suits were consolidated by the Trial Court vide order dated 2.2.1994 and Original Suit No. 162 of 1990 was made leading case.
4. In Original Suit No. 162 of 1990 petitioner no. 1 was impleaded as sole defendant and in Original Suit No. 163 of 1990 petitioner no. 2 was impleaded as sole defendant. Subsequently respondent no. 3, Smt. Santoshi, moved an impleadment application seeking permission to contest the above two suits which was allowed and she was impleaded as defendant no. 2 in both the Suits. She filed a written statement setting up an independent claim with respect to property in dispute and contended that she had title of the property pursuant to will dated 12.4.1988 executed by deceased Bachai Singh alias Bachan Singh and setting up a counter claim she denied the claim of defendant no. 1 in both the suits. On 13.7.1993, the plaintiff and defendant no. 1 in both the suits entered into compromise which was accepted by the Trial Court by order dated 29.7.1993. However, he passed another order on 1.3.1994 observing that plaintiff and defendant no. 1 have entered into a settlement/compromise and now no relief can be granted to plaintiff against defendant no. 1, but since defendant no. 2 has set up a counter claim against defendant no. 1 and therefore dispute is now centred between the two defendants. In the circumstances, the defendant no. 2 is directed to transpose itself as plaintiff. The defendant no. 2 was consequently directed to take steps in this regard. The order dated 1.3.1994 however was recalled on 9.9.1994 and since the plaintiff was not taking any interest after settlement with defendant no. 1, his suit was dismissed. The Trail Court then also passed an order to register the counter claim of defendant no. 2 against defendant no. 1 with a separate number and to proceed against the defendant no. 1. Objection to the above procedure was raised that neither transposition is permissible nor registration of counter claim of the co-defendant as suit is permissible. The matter was taken up for hearing on 17.1.1995. The Trial Court by order dated 17.1.1995 rejected the objections and directed the petitioners i.e. defendant no. 1 in both the suits to file their written statements/objections if any by 1.2.1995. Petitioners thereafter preferred civil revision which was allowed and order dated 17.1.1995 was set aside and matter was remanded to Trial Court to proceed further in accordance with law. The Revisional Court however has observed that even though claim set up by defendant no. 2 may not be treated to be a counter claim since it amounts to supporting claim and stand of the plaintiff, yet if the defendant no. 2 is inclined to pay separate Court fees, the Trial Court ought to examine the matter under Order 6 Rule 4 and should pass appropriate order. It has also observed that Trial Court ought to have obtained report from the Munsarim on the counter claim of defendant no. 2 and then if it finds certain facts lacking, it could have required defendant no. 2 to provide such details under Order 6 Rule 4 and thereafter could have decided the issue between the parties.
5. This Writ petition is directed against the above observations/directions of Revisional Court as in substance it has maintained the case of defendant no. 2 against the defendant no. 1 though the Original Suit itself stands dismissed since the plaintiff who has sought relief against petitioners has compromised and nothing survive thereafter.
6. Sri Rajesh Ji Verma, learned counsel appearing for respondent no. 3 however, submitted that transposition was permissible under Order 1 Rule 10 and a counter claim under Order 8 Rule 6A hence there is no error in the impugned revisional order warranting interference.
7. In my view the Original Suit No 162 of 1990 having already been compromised between the parties could not have proceeded thereafter on the basis of counter claim set up by defendant no. 2 against defendant no. 1 therein i.e. by respondent no. 3 against the petitioners. Such a counter claim is not maintainable under Order 8 Rule 6A and even a transposition under Order 1 Rule 10 by directing defendant no. 2 to be transposed as plaintiff is impermissible.
8. The facts which are not disputed by Sri Rajesh Ji Verma are that plaintiff has not sought any relief against the defendant no. 2 and defendant no. 2 has also not set up any counter claim against the plaintiff. Therefore, there was no lis between plaintiff and defendant no. 2 i.e. petitioners and respondent no. 3 in this writ petition. The entire claim set up by defendant no. 2 i.e. respondent no. 3 was against the present petitioners who were defendant no. 1 in the above two suits. Such a claim would not qualify as "counter claim" under Order 8 Rule 6A which reads as under:
"6A. Counter-claim by defendant.-(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) Such counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original suit and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."
(emphasis added)
9. A bare perusal of order 8 Rule 6-A shows that counter claim can be set up against the plaintiff. Such counter claim must have same effect as a cross case so as to enable the Court to pronounce a final judgment in the same suit, both on the original suit and on the counter-claim. Sub-rule 3 of Rule 6A in these circumstances entitle the plaintiff to file a written statement to answer the counter claim of defendant and Sub-rule 4 provides that such counter claim shall be treated as plaint and governed by rules applicable to plaints. The conditions precedent therefore as is evident form a bare reading of Rule 6A is that counter claim has to be and could be set up only against the plaintiff. If it is not against the plaintiff, such counter claim is not maintainable under Order 8 Rule 6A.
10. The Apex Court in Rohit Singh Vs. State of Bihar AIR 2007 SC10 considering the scope of counter claim with respect to Order 8 Rule 6A has observed:
"Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession."
(emphasis added)
11. Coming to the question of transposition of defendant no. 2, this Court finds that in the present case such an order with reference to Order 1 Rule 10 is also impermissible. Sub-rule 1 talks of mention of a wrong name as plaintiff and in such case substitution or addition as plaintiff. This is not applicable to the present case. Sub-rule 2 would apply only when it appears to the Court that impleadment or addition as party is necessary to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit. Here nothing has been said to this affect for deciding the suit which has already come to an end by virtue of compromise between the plaintiff and defendant no. 1 and hence there was nothing to be decided or adjudicated by the Trial Court in the suit filed by the plaintiff Maharaj Singh and Vakil Singh. Since no relief was sought against the defendant no. 2, he/she was not a necessary or proper party in the suit. Though the court permitted the defendant no. 1 to be impleaded by allowing her impleadment application but from the facts discussed in the order, it is evident that neither any relief was sought against the defendant no. 2 by plaintiff himself nor the Court found any dispute to be settled between the plaintiff and defendant no. 2 at any point of time, therefore, defendant no. 2 was neither necessary nor proper party in the facts and circumstances of this case.
12. In Life Insurance Corporation of India and another Vs. Gangadahar Vishwanath Ranade AIR 1990 SC 185, a suit was filed alleging negligence and delay in payment by Life Insurance Corporation which took the defence that delay occurred due to an Officer of Income Tax department and since he was not impleaded, the matter could not have been decided properly. The Apex Court in para 17 of the judgment observed that no relief was sought against the Income Tax official and therefore his presence was not necessary. In these circumstances Income Tax Officer was held neither a necessary nor proper party.
13. Here also while allowing the compromise between the plaintiff and defendant no. 1 and ultimately dismissing the suit on this ground, the Court below did not find the presence of defendant no. 2 in any manner necessary so as to settle any dispute with plaintiff. Her presence or absence has not been found to be of any concern in the Original Suits. It is only when the suit itself was decided in terms of compromise, in a strange but illegal manner, the claim set up by the defendant no. 2 only against defendant no. 1 has been treated to be a counter claim and she has been allowed to pursue the matter as plaintiff. This procedure followed and adopted and findings recorded by Court below are wholly illegal and contrary to law. Both the Courts below have completely erred in appreciating the relevant statutory provisions in this regard and even Sri Verma found it difficult to support continuance of suit by transposition of defendant no. 2 as plaintiff and to continue suit against defendant no. 1. He in fact lastly conceded that defendant no. 2 could have and ought to have filed a separate suit for settling her claim with defendant no. 1. In these facts and circumstances, Original Suit No. 162 of 1995 and 163 of 1995 having already been settled on the basis of compromise between the plaintiff and defendant no. 1 cannot be allowed to continue further vide alleged claim set up by defendant no. 2 against defendants no. 1 i.e. by respondent no. 3 against petitioners. The findings/ observation made by Court below contrary to discussions made above are of no consequence. The Trial Court cannot proceed with the aforesaid two suits.
14. In the result, writ petition is allowed. The impugned order dated 17.1.1995 and 8.11.1996 (Annexures 6 and 7 respectively to writ petition) are quashed. Both the suits are consigned to record.
15. This judgment, however, shall not preclude the respondent no. 3 from filing a fresh suit against the petitioners in accordance with law.
Dt. 14.5.2012 PS