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Report No. 144

6C. Exclusion of counter-claim.- Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded and the Court, may on hearing of such application make such order as it thinks fit."

Learned counsel appearing for the petitioner has also drawn our attention to new rule 6F of Order 8 and the amended rule 19 of Order 20 in support of his contention that the right of the defendant to raise a counter-claim has limited by the Code only in cases where the dispute is in respect of a money claim. Rule 6F of Order 8 is as follows:-

"6F. Relief to defendant where counter-claim succeeds-Where in any suit a set-off or counter-claim is established as a defence, against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance."

From rule 6F, it is apparent that counter-claim must relate to a monetary claim, because Court has been vested with power to pass a judgment even in respect of any balance found due to the defendant. Rule 19(1) of Order 20 is as follows:-

"19 (1). Where the defendant has been allowed set-off (or counter-claim) against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party."

"In view of the amended rule 19(1), which is a provision regarding preparation of the decree in respect of suits where a counter-claim has been allowed by the Court, it is clear that in the decree what amount is due to the defendant has to be stated. In my opinion, the contention of the learned counsel for the petitioner that counter-claim under the rules aforesaid can be made only in such suits in which there is dispute in respect of money claim, has to be accepted.

In the instant case the suit which was filed on behalf of the plaintiff was for declaration that he was the licensee of the premises in question and has a right to remain in possession thereof for the period mentioned in the plaint. In my view, it was not open to the defendant to make a prayer for eviction of the plaintiff by way of counter-claim. As such, the order amounts to an exercise of jurisdiction illegally and with material irregularity and calls for an interference by this Court."

6.5.6. On the other hand, according to the High Court of Punjab and Haryana, it is permissible1 to make a counter-claim for non-monetary relief, this is also the Kerala view.2

1. Suman Kumar v. St. Thomas School & Hostel, AIR 1988 P&H 38 (39), para. 2 (and earlier Puniab case cited in it, particularly Bhim Sain v. Laxmi Narain, AIR 1982 P&H 155).

2. Raman Sukumaran v. Velayudhan, AIR 1982 Ker 253 (255), para. 6 (Khalid, J.)

6.5.7. The Patna view, with respect, goes counter to the whole concept of counter-claim in this context, it would be useful to quote from Mulla:1

"Rules 6A and 6G are new and confer in addition to a right of set-off under rule 6 a statutory right to file a counter-claim. Before their addition in Order 8 a set-off and counter-claim were strictly speaking not permissible unless they fell within the limited compass of rule 6.2 Even in the case of an equitable set-off where the defendant's claim made in the set-off was larger than the plaintiff's claim and courts in view of Order 20, rule 19 allowed a counter-claim for the balance amount as a cross-suit, such procedure was admitted only where the claim in the plaint and that in the counter-claim arose from the same transaction or a series of transactions which amounted to the same transaction.

The new rules now confer a statutory right to a defendant to setup a counter-claim. The claim need not be for liquidated amount. This is clear from the words "a claim for damages or not" in rule 6A. The wide words which rule 6A is couched shows that it can be brought in respect of any claim that could be the subject of an independent suit. It is no longer confined to money claims or to causes of action of the same nature as the original action and it need not relate to or be connected with the original cause of action or matter.

The words "any right or claim in respect of a cause of action accruing to the defendant" show that the cause of action from which the counter-claim arises, need not arise from or have any nexus with the cause of action pleaded by the plaintiff. A claim founded in tort may be opposed by one founded on contract. Further, the defendant by his counter-claim may ask for any relief, e.g., a declaration, relief against forfeiture, injunction receiver, specific performance, an account, payment of a money claim or damages. The words, "both before or after the filing of the suit" in rule 6A show that a defendant may set up a cause of action which has accrued since the suit was filed."

A counter-claim may contain more than one cause of action provided the different cause of action are such as can be joined in a suit as an independent suit. Rules applicable to the form of a plaint would apply to a counter-claim (rule 6A).

1. Mulla Code of Civil Procedure, (1984), Vol 2, p. 1086.

2. Laxmidas v. Nanabhai, AIR 1964 SC 11.

6.5.8. The Karnataka High Court1 has observed that a set-off is a defence put forward seeking absolvement from payment of the claim made, whereas counter-claim is a separate and independent action for recovery of money from the other person and such a courier-claim need not be limited to monetary claims only.

1. Anand Enterprises v. Syndicate Bank, AIR 1990 Karn 175.

6.5.9. The Orissa High Court1 has held that rule 6A of Order 8 cannot be construed in a limited sense as has been done by the Patna High Court, and that the Court can entertain by way of a counter-claim whether the claim is in respect of money or not.

1. Ramsewak Kashinath v. Sarafuddin, AIR 1991 Ori 51.

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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