1. In this case the plaintiffs have taken out a summons against the defendant to show cause why the counterclaim for Rs. 25,000 made by the defendant against them in his written statement should not be excluded from this suit and why he should not be directed to file a separate suit.
2. The defendant was arrested before judgment under an order of this Court but was released on shewing cause. He had then the choice between claiming compensation under Section 491 of the Code of Civil Procedure, under which he would be limited to a claim of one thousand rupees, or instituting a separate suit. He has declined to exercise his right to claim compensation under Section 491 but he has claimed Rs. 25,000 as damages for wrongful and malicious arrest by a counterclaim in his written statement. No doubt, Rule 122 is very wide and enables the defendant to counterclaim on account of any cause of action he may have against the plaintiffs, but at the same time the plaintiffs can come to Court and ask that the counterclaim should be excluded from being tried at the same time as their claim. I do not know if any such application has been made before, but it seems to me that when the Code has provided means whereby the defendant is able to apply to the Court in the suit to award him compensation on the ground of his having been arrested on insufficient grounds but has limited the amount that can be awarded to one thousand rupees, he should not be allowed to counterclaim for a larger sum as damages for wrongful and malicious arrest if there is any likelihood of the plaintiff being embarassed thereby. Under the Code there is no doubt that he would have to file a separate suit and the only question really is whether under the rules he should be allowed to counterclaim for such damages. I think, if he declines to exercise hi right under Section 491, that this is not a question which ought to be tried by counter-claim in this suit. Whether the Court should award compensation to a defendant on the grounds that he has been arrested before judgment for insufficient reasons is quite a different question to whether the defendant should be awarded damages for wrongful and malicious arrest and in my opinion the plaintiff would be seriously embarassed if this counterclaim were allowed to stand.
3. I, therefore, make the summons absolute.
4. [On the question of costs being argued after the judgment was delivered, His Lordship delivered the following judgment on costs.]
5. Mr. Robertson strenuously argued that I ought not to make his client pay the costs of the summons.
6. A defendent no doubt has a right under the rules to include any claim he pleases in a counter-claim, but he does that at his own risk and if the plaintiff succeeds in getting that counterclaim excluded from the suit, it goes out of the suit altogether and the costs incurred in effecting that must be paid by the defendant. It may be different in the case of a contested summons in respect of a matter which remains pertinent to the suit, e.g. a summons for commission or for discovery.
7. But here the result of this summons is that the counterclaim is cut out of the suit entirely, and there is no reason why the plaintiff, in the event of his losing the suit, should have to pay the costs of excluding a counterclaim which the Court has ' held would embarass him in the conduct of his suit. The summons must be made absolute with costs, counsel certified.