- (1.) This petition is directed against the order of the trial Court dt./-28-11-1985, whereby the trial court negatived the contention of the defendant-petitioner to convert his counter-claim into a plaint.
(2.) The plaintiff respondent filed the suit for permanent injunction against the defendant-petitioner and others for restraining them from dispossessing the plaintiff school forcibly and from interfering in its peaceful possession. In that suit, the defendant petitioner filed a counter-claim as contemplated under O.8, R.6-A, Civil P.C. Later on, the plaintiff was allowed to withdraw its suit with permission to file a fresh suit on the same cause of action. Thus, the suit was dismissed as having been withdrawn. At that stage, it was requested on behalf of defendant 3 to convert his counter claim into a plaint, and to decide it as such, as contemplated under O.3, R.6-D, Civil P.C. The trial court repelled the contention of the defendant with the following observation :- "So, when the suit filed by St. Thomas School through its Secretary has not been found to be maintainable, counter-claim put forth by defendant 3 if converted into a plaint will fall on the same ground namely, that it will not be maintainable against a registered/corporate body represented through Kishan Chand not properly authorised to defend the counter claim. Accordingly, therefore, finding no merit in the contention made on behalf of defendant 3 to convert the counter-claim into a plaint, I hereby dismiss the same." Learned counsel for the defendant-petitioner submitted that even if the suit of the plaintiff had been dismissed as withdrawn, the counter claim could be proceeded with as provided under O.8, R.6-D, Civil P.C. In support of this contention he referred to Ved Parkash v. Om Dutt, (1984) 86 Pun LR 411, Munshi Ram v. Radha Kishari, AIR 1975 Punj and Har 112, Bhagirath Singh v. Ram Nath, AIR 1977 NOC 219 (Madh Pra), Bhim Sain v. Laxmi Narain, 1982 Cur LJ (Civ) 1 and Ranjit Singh v. Kartara Ram, 1985 Pun LJ 521. On the other hand, learned counsel for the plaintiff-respondents submitted that no counter-claim was maintainable except in the suits for recovery of money, and, therefore, the counter-claim had been rightly dismissed. In support of this contention, he referred to Jashwant Singh v. Smt. Darshan Kaur, AIR 1983 Pat 132. It was next contended that in any case, the counter claim was liable to be dismissed in view of S.6, Registration of Societies Act. That being so, argued the learned counsel, the impugned order was valid, and could not be interfered with in revisional jurisdiction.
(3.) I have heard the learned counsel for the parties and also gone through the case law cited at the Bar. The provisions of O.8, R.6, as amended in the year 1976 came up for consideration in this Court before a Division Bench in Bhim Sain's case (supra) where proceedings under the Haryana Urban (Control of Rent and Eviction) Act, 1973, were taken by the landlord to eject his tenant on the ground of non-payment of arrears of rent. However, the tenant deposited the arrears on the first date of hearing as claimed but at the same time he disputed the rate of rent. Since the arrears were paid by the tenant, the landlord got his petition dismissed. Aggrieved with it, the tenant came up in revision that his plea that the rate of rent was less ought to have been decided by the Rent Controller even if the landlord did not want to continue with his petition. The said contention of the tenant was accepted by this Court, and the Rent Controller was directed to frame the issue in this regard and determine the quantum of rent. While deciding that case the provisions of O.8, Rr.6-A to 6-G, C.P.C., were considered and it was observed : "The scope of such defence plea having the effect of a cross claim is to enable the Court to pronounce the final judgement in one and the same proceedings. These principles which have now come about as a part of the Civil P.C. carry out the broader principles of the public policy that there should be avoidance of multiplicity of proceedings and the parties should litigate once for all lest suffer bar of res judicata as spelled out in the aforequoted single Bench decision. Protest payment at the rate claimed by the landlord or insisted upon by the tenant is necessary to claim benefit of the proviso to avoid, eviction." The matter came up for consideration before : me also in Ranjit Singh's case (1985 Pun LJ 521) (supra) where it was held that cl.(3) of R.6-A provides that 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. Clause (4) further provides that the counter claim shall be treated as a plaint and governed by the rules applicable to plaints. Rule 6-G provides that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter claim. Thus, reading these provisions, it is quite evident that the plaintiff was entitled to file the written statement its answer to the' counter-claim. Of course, in Jashwant Singh's case (AIR 1983 at 132) (supra), the view taken is that the counter-claim as provided under O.8, R.6-A is limited to cases involving money claims, yet a contrary view was taken by the Kerala High Court in Raman Sukumaran v. Velayudhan Madhavar, AIR 1982 Ker 253. I am in respectful agreement to the view taken by the Kerala High Court when it observed : "There is a clear distinction between set off and counterclaim. Before the introduction of R.6-A, the defendant had only a statutory defence of set off. I find it difficult to accept the contention that a counter-claim can be made only in a suit for money. Instances are not rare even before R.6-A came into vogue where counter claims were put forward in "' suits other than the money suits. Now specific provisions are made. Rules 6-A to 6-G deal with them : Rule 6-F deals with cases where Court finds a balance either in favour of the plaintiff or the defendant. The effect of Rules 6-A to 6-E and 6-G cannot be taken away by referring to Rule 6-F alone. Even Rule 6-F need not refer to money suits alone." In any case, the Division Bench of this Court has made the said provisions applicable even to the proceedings before the Rent Controller, and, thus, it is-quite evident that now in view, of the amendment in R.6 of O.8, a counter claim can be made by the defendant in any kind of suit, i.e., whether a money suit or not :;