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Report No. 144

6.5.3. Question for consideration.-

With reference to these provisions, the question has arisen whether, in a suit seeking a permanent injunction (or, for that matter, any kind of non-monetary relief), a counter-claim can be entertained.

6.5.4. The High Court of Patna has held that the right to make a counter-claim is limited to cases involving a money claim.1

1. Jashwant Singh v. Darshan Kaur, AIR 1983 Patna 132 (134, 135), paras. 8-11 (DB).

6.5.5. It is necessary to quote paragraphs 8 to 11 of the judgment of the Patna High Court, because there were several questions involved. These paragraphs read as under:-

"Now, the question which has to be examined is as to whether there is any limitation on the nature of the counter-claim? Rule 6 prescribes certain conditions before a plea of set-off can be entertained. These conditions are that: (i) the suit must be one for recovery of money, (ii) the set-off claimed by the defendant must be in respect of an ascertained sum of money, (iii) such sum must be legally recoverable by the defendant from the plaintiff, (iv) both the parties must fill the same character as they fill in the plaintiffs suit, (v) such claim should not exceed the pecuniary limit of the jurisdiction of the court.

So far as the new rule 6A is concerned, no such restrictions have been mentioned. It simply enables a defendant to set up by way of a counter-claim any right or claim in respect of a cause of action accruing to the defendant against the plaintiff'. Can it be said that in view of rule 6A defendant is at liberty to raise any dispute in the suit of the plaintiff irrespective of its nature?

The expression counter-claim has often been used in context with 'set-off'. In Stroud's Judicial Dictionary it has been mentioned that "set-off and counter-claim confer definite and independent remedies upon the defendant against the plaintiff." The expression 'counter-claim' had not been used in rule 6, but in several judicial pronouncements the said expression has been used alongwith the expression 'set off'. In the case of Sheobachan Pandey v. Madho Saran Choubey, AIR 1952 Pat 73, a Bench of this Court while construing the scope of Order 8, rule 6 observed as follows (at p. 75):

"A cross-claim may be sent up as a shield or as a "sword. When it is set up as shield it is a defensive weapon and may be pleaded by the defendant to reduce the liability against him even to the full extent of the plaintiff's claim. A counter-claim in the shape of a defensive measure is what is technically known as a set-off."

If the expression 'counter-claim' used in the aforesaid rule 6A is given an interpretation to include any claim irrespective of its nature and as to whether it has any connection with the claim of the plaintiff then in a suit filed on behalf of the plaintiff for recovery of an amount advanced to the defendant, defendant can make a prayer to declare his title and to pass a decree for recovery of possession in respect of any land or house against the plaintiff of that suit, if any such dispute is pending between them, although it has no connection whatsoever with the claim for a money decree made on behalf of the plaintiff.

In my view, the framers of the Code never purported to enlarge the scope of a suit filed on behalf of the plaintiff, at the instance of the defendant. When they have used the expression 'counter-claim' it means that the claim and the counter-claim may be decided in the same suit in order to avoid multiplicity of the suits. Perhaps, keeping this aspect of the matter in view, by amendment rule 6C has also been introduced which is as follows:



Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back




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