N C KARMAKAR Vs. T N DAS

JUDGEMENT

(1.) This revision has been filed against the order dated 19/12/1994 passed in TS No. 43 of 1989 by the learned Asstt. District Judge, Barpeta entertaining the counter claim of the respondent/defendent No. 2. Earlier the present petitioner as plaintiff instituted a suit for specific performance of the contract alleging that there was an agreement for sale between him and the original landlord. Subsequently the suit premises was purchased by the defendant No. 5, the son of defendant No. 2 and in the suit for specific performance of contract, a counter claim was filed by way of claim for ejectment of the defendant from the house under the Assam Urban Areas Rent Control T. Act. In the instanl case, we are not concerned with the pleas of the defendant in the suit as well as in the counter claim. What falls for determination in this revision application is that whether the said counter claim filed is tenable in view of Order 8 Rule 6A. Order 8 Rule 6A of CPC as introduced by the amendment in the year 1976. Order 8 Rule 6A provides how a counter claim is to be filed. Rule 6A to 6G provide for filing of a counter claim by the defendant in a suit. Further a counter claim need not be an action of the same nature as the original claim or analogous thereto. Earlier in the Code there was no provision for making counter claim and to that extent there was some amount of divergence between the different High Courts and as a result of which this amendment was introduced in the year 1976 giving independent right to the defendant to file a counter claim.

(2.) Heard Mr. N. Goswami, Learned counsel for the petitioners makes the following submissions - i) A counter claim is to be confined to money claim only. In support of his contention, Mr. Goswami draws my attention to Order 20 Rule 19 of the CPC which provides how a decree in case of counter claim is to be drawn out but at the same time it should to be borne in mind the Rule 9 which provides that drawing up a decree is procedural matter and the procedural matter cannot be governed or can not take vay the right of a person to file counter claim. This contention of Mr. Goswami does not have any force.

(3.) The next contention of Mr. Goswami, counsel for the pet tioners is that this counter claim cannot be entertained by the Court of the Asstt. District Judge and it should have [been filed before the Court of Munsiff in as much as per Section 15 of CPC! every suit shall be instituted in the Court of the lowest grade competent to try the suit, but this submission of Mr. Goswami has also no legs to stand upon in as much as the Court of Asstt. District Judge is very much competent to entertain the suit.