- (1.) In the present case, petitioner/plaintiff filed Suit No. 121 of 1991 in the court of Civil Judge, Etawah for the relief of permanent injunction and accounting in respect of disputed property in question qua Abdul Aleem. During pendency of the Suit, Smt. Jamarrud Begaum, respondent no.4 was also added as party. She filed her written statement taking stand that property had been purchased from erstwhile owner by registered sale deed on 14.6.1965 and same had been let out to the defendant No. 1 of the suit through rent note dated 17.8.1984, and further plaintiff on the basis of the fictitious sale deed has taken possession of the property. In the written statement itself counter claim for ejectment from the property in dispute has been claim. Counter claim was valued and court fee was paid. Said counter claim was objected to by petitioner/plaintiff contending that same was not competent, as no relief has been claimed against the said respondents. Said application was considered and it was rejected on 14.8.1992. Against the same revision was filed and same has also been dismissed on 30.8.1993. At this juncture present writ petition has been filed.
(2.) Sri Ashutosh Srivastava, Advocate, learned counsel for the petitioner contended with vehemence that in the present case courts below have erred in law in entertaining the counter claim for ejectment of plaintiff from the premises in question whereas same was not at all legally maintainable under Order 8 Rule 6 and 6A of Code of Civil Procedure, 1908 and in such a situation orders are liable to be set aside. At this juncture provision of Order 8 Rule 6 and 6A are being looked into:- Order-8 Rule-6. Particulars of set -off to be given in written statement:- (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisd98ction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off. (2) Effect of set-off. The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. 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 counterclaim 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 claim 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. A bare perusal of provision would go to show that earlier counter claim was in respect of set-off in a suit for recovery of money and qua money which was legally recoverable from the plaintiff. Sub- rule (4) of Rule 6A of Order-8 of Act, 1976 in order to avoid multiplicity of the proceeding in addition to the Rule 6 of Order-8, has been introduced wherein counter claim against the claim of plaintiff, qua any right or claim in respect of cause of action, could be set up and said counter claim was to be treated as a plaint and governed by the rules applicable to plaints and has the same effect as of cross suit accruing to the defended against the plaintiff. Counter claim after introduction of Rule 6A of Order 8 is not only confined to money suit, but by way of counter claim whatsoever relief against the plaintiff could have been asked for, same could be asked for, and the only rider imposed, is that counter claim shall not exceed pecuniary jurisdiction of Court.
(3.) Counsel for petitioner, has placed reliance on Division Bench judgement of Patna High Court, in the case of Jaswant Singh v. Smt. Darshan Kaur for the preposition, that counter claim is limited to cases involving money claim. The said judgment will not at all help the petitioner, as very narrow view has been taken in the manner, frustrating the very object for which, said provision has been introduced. Hon'ble Apex Court, in the case of Gurbachan Singh v. Bhag Singh, 1996 AIR(SC) 1087 paragraph 3 has clarified such a situation and held as follows:- 3. It is true that Rule 6A(a) was introduced by Amendment Act of 1976. Preceding the amendment is 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 or before the time limit for delivering the written statement has expired, whether such 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. Thus considered we hold that in a suit for injunction, the counterclaim for possession also could be entertained by operation of Order 8 Rule 6 (A)(1) of C.P.C.;