Singh Vs. Bhag Singh & Ors  INSC 734 (24 November 1995)
K. Ramaswamy, K Hansaria B.L. (J)
1996 AIR 1087 1996 SCC (1) 770 JT 1995 (9) 208 1995 SCALE (7)293
O R D
petitioner and the 8th respondent had filed a suit for perpetual injunction
restraining the respondents 1 to 7 from dispossessing them from the suit land
or part thereof.
filed the written statement contending that the petitioner and the 8th
respondent had trespassed into their land of an extent of 3 kanals and they are
in unlawful possession. Thereby, they raised counter claim, in the written
statement, for possession. The Trial Court, while dismissing the suit of the
petitioners, granted decree for possession of two kanals, two marlas and one biswas
comprising survey numbers mentioned therein. On appeal, it was confirmed and
the High Court confirmed it in R.S.A. No.1190/94 on May 18, 1995. Thus this Special Leave Petition.
contention raised in the courts below was that in a suit for perpetual
injunction, the respondents could not lay any counter claim for possession.
Order 8 Rule 6(A)(1) of the C.P.C., 1908 as amended in 1976 reads thus:
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 plaintiffs, 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." It is true
that Rule 6A(a) was introduced by Amendment Act of 1976. Preceding the
amendment, it 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 before the defendant filed his written statement or
before the time limit for delivering the written statement has expired, whether
such counter-claim is in the nature of a claim for damages or not. Further
limitation was that the 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 counter-claim for possession also could be entertained, by
operation of Order 8 Rule 6 (A)(1) of CPC.
sought to be contended that the counter-claim was not filed within the time
given for laying the same. It would appear from the list of the dates given by
the petitioner himself that the counter-claim was filed within two months from
the date of the suit itself.
these circumstances, the special leave petition is dismissed.