Report No. 144

6.5.10. Recommendation:-

In our view, the exposition of the law by Mulla (quoted above) is a sound one. It is supported by the wide language of the provisions in question and (read in conjunction with the safeguards provided in the rules) does justice to both the parties. We recommend that the wider view of the scope of counter-claim should be incorporated by suitable amendment. This could be achieved by adding, below Order 8, rule 6A(1), an Explanation on the following lines:-

"Explanation.-Subject to the other provisions of this Code, it is immaterial that the cause of action in the counter-claim is not based on the same transaction as the suit, or that the suit is not for money, or that the counter-claim is not for money."

6.6.1. Order 5, rule 2, provides that a copy of the plaint must accompany the summons. Order 9, rule 13, second proviso, however, (as inserted in 1976), provides as under:-

"Provided further that no Court ;hall set aside a decree passed ex parte, merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and, answer the plaintiff's claim."