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The Nav Samaj Ltd. Vs. Shamrao Tukaramji Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1110 of 1982
Judge
Reported inAIR1984Bom23
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2 - Order 8, Rules 6A and 9
AppellantThe Nav Samaj Ltd.
RespondentShamrao Tukaramji Patel
Appellant AdvocateR.K. Thakur, Adv.
Respondent AdvocateB.N. Mohta, Adv.
Excerpt:
a) it was held that order 2, rule 2 of the civil procedure code, 1908 operates as a bar to subsequent suit and does not bar plea in defence.;b) in accordance with order 8, rule 6a of the civil procedure code, 1908 there is no statutory bar in allowing the setting up of a counter-claim by the plaintiff to the counter-claim of the defendant. - .....court to pronounce a final judgment in the same suit both on the original claim and on thecounter-claim.rule 6(3) gives liberty to the plaintiff to file written statement to the counter-claim of the defendant within such period as may be fixed by the court and rule 6 (4) provides that the counter-claim shall be treated as plaint and governed by rules 9, c. p. c lays down that no pleading subsequent to the written statement of a defendant other than by way of defence to a set off or counter claim shall be presented except with the leave of thecourt. thus order 8, rule 9. c. p. c. does not apply to the pleadings filed by way of defence ot the counter-claim. none of the rules thus provide that the reply filed by the plaintiff to the counter-claim of the defendant shall be treated as plaint.....
Judgment:
ORDER

1. This revision application is filed by the original defendant against the order dated 31-7-1982 passed by the Civil Judge, Senior Division , Nagpur in Special Civil Suit No. 213 of 1980 rejecting his application under Order 2, R. 2, C. P. C.

2. The defendant is a company registered under the Companies Act, 1956 and owns two daily newspapers in Nagpur named ' Nagpur Times ' and Nagpur Parika and has its office at Ramdaspeth Nagpur. The plaintiff was appointed sole selling agent for these two papers under written contract. Amongst other terms, the plaintiff as sole selling agent had deposited Rs. 30, 000/- as deposit with the defendant at the prescribed rates and he was entitled to commission as per terms of contract.

The plaintiff filed a special Civil Judge . Senior Division, Nagpur on : 3-12-1980, for recovery of Rs. 52,443.83 detailed as under

(see Table below )

3. The plaintiff in para 16 of his plaint stated that besides the aforesaid amount the deposited amount of Rs.20,000/- deposited on 18-9-1978 and Rs. 10,000/- deposited on 18-9- 1980 are also due and recoverable from the defendant to the plaintiff which amount the plaintiff is not asking in the present suit from the defendant and still continue to be deposit with the defendant. Thus the plaintiff has not claimed this amount in this suits.

The defendant filed his written statement with counter-claim on 11-6-81 denying the claim and also the terms of contract said to have been oral between the parties. The defendant submitted that the remuneration payable to plaintiff is governed by written contract . He denied that the plaintiffs entiled. To claim Rs.30,000/- from him since be owes to the defendant the amount in excess of his deposit.of the extent of rupees 39,000322 as on 31-7-1980. Therefore after adjusting the deposit of Rs. 30,000/- the plaintiff owed to him Rs. 8,579.65 and adding interest thereon at 12% per annum from 27-7-1980, when the agency of the plaintiff was terminated he filed a counter-claim of Rs. 9,360.65, praying for dismissal of plaintiff 's suti and a decree for this amount along with costs and future interest or in the alternative for the amount found along with costs and future interest or in the alternative for the amount found due after adjusting the claim of the plaintiff aginst him,if any .

4. The plaintiff on 18-9-1981 in reply to the counter-claim of the defendant filed his written statement and again made a counter-claim of Rs. 31,065/- He contended that after filing the suit aforesaid. The plaintiff by notice dated 21-7-81 determined the agreement of agency and demanded back from the defendant Rs.30,000/- as aforesaid plus Rs. 915/- interest plus Rs. 150/- notice charges total Rs. 31,065/-

6.The defendant then filed an application under Order 2, Rule 2, read with Order 8, Rule 9, C.P. C on 23-11-1981 and thereby urged that counter-claim of the plaintiff to the extent of Rs. 31,065/- is untenable in law and hence is liable to be rejected. This application was opposed by the plaintiff . After hearing the parties, the learned lower Court vided his order dated 31-7-1982 held that (1) Order 2, Rule, C.P. C. does not apply to the facts of this case and (2) O. 2, Rule 2 only precludes subsequent suit but does not bar the plea in defence and in this view he rejected the application. This order is challenged by the defendant in this revision application.

7. Shri Thakur, learned counsel for the defendant , contended that there is no provision under C. P. C. for allowing the setting up of a counter-claim by the plaintiff to the counter-claim of the defendant, and the lower court acted with material irregularity in entertaining the some. The plaintiff could have applied only for amendment of plaint. He further submitted that the reply of the plaintiff is in contravention of order 8, Rule 9, C. P. C. and Rule 6A to 6G , C.P. C. for the purpose of deciding this objection , it is necessary to refer to the said provisions. Rule 6A enables the defendant in a suit to set up, in addition to his pleadings, by way of counter-claim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to him against the plaintiff either before or after the filing of the suit, whether the 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 th jurisdiction of the Court. Rule 6 (2) provides that such counter-claim shall have the same effect as a cross -suit so as to enable the court to pronounce a final judgment in the same suit both on the original claim and on thecounter-claim.Rule 6(3) gives liberty to the plaintiff to file written statement to the counter-claim of the defendant within such period as may be fixed by the Court and Rule 6 (4) provides that the counter-claim shall be treated as plaint and governed by Rules 9, C. P. C lays down that no pleading subsequent to the written statement of a defendant other than by way of defence to a set off or counter claim shall be presented except with the leave of theCourt. Thus Order 8, Rule 9. C. P. C. does not apply to the pleadings filed by way of defence ot the counter-claim. None of the Rules thus provide that the reply filed by the plaintiff to the counter-claim of the defendant shall be treated as plaint and shall be governed by rules applicable to the plaint. I am therefore, of the opinion that there is no statutory bar in allowing the setting up of a counter-claim by the plaintiff to the counter-claim of the defendant and hence hold that the trial Court has correctly overruled this objection.

8. The counsel for the defendant then contended that the counter-claim of the plaintiff is not at all tenable in view of provisions contained in Order 2. Rule 2, C. P.C. He vehemently urged that the counter-claim of the plaintiff to the extent of Rs. 31,065/- set up in his reply dated 17-9-1981 be rejected as not tenable in law. He relied upon the ruling : [1980]1SCR854 , Kewalsingh v. Lajwanti . The relevant portion is quoted here from the case of Mohammed Khalil Khan v. Mahbbun Ali Mian , ;-

'The principles laid down in the cases so far discussed may be thus summarised:

The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is in fact founded on a cause of action distinct from that which was the foundation for the former suit.

The cause of action means every fact which will be necessary for the plaintiff to prove if traversed. In order to support his right to judgment.

If the evidence to support the two claims is different than the cause of action are also different.

The cause of action in the two suits may be considered to be the same if in substance may they are identical.

(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the court to arrive at a conclusion in his favour'.

Applying the aforesaid principle laid down by the privy Council, let us examine whether any of the conditions mentioned by privy council are applicable in this case.

9. Order 2, Rule 2, C. P.C contemplated the suit in respect of the same cause of action to include the whole claim. There must be only one cause of action for the applicability of the rule. It bars the subsequent suit in respect of the same cause of action. The point of time for determining the bar is the date of institution of the suit and it is necessary to show that the plaintiff had at the time of institution of the previous suti actual knowledge and not merely constructive knowledge of the rights which he is seeking to enforce in a subsequent suit. The rule is base on the principle that the defendant should not be twice taxed for one and the same cause of action. This rule provides that if a party omits any portion of the claim which he is entitled to make or any of the remedies which he is entitled to claim in respect of cause of action for the suit, he shall not thereafter sue for the portion of the claim or for remedy so omitted . The test in cases falling under Order 2 Rule2, C. P. C. is whether the claim in new suti is in fact founded upon a cause fo action distinct from that which was the foundation for former suit. If the evidence to support two claims is different the cause of action is different.

10.The different claims made by the plaintiff and defendant are already given in paras 2 to 5 above, The averment made by the plaintiff in his initial plaint para 16 is also given in para 3 above. The plaintiff has claimed a decree for deposit of Rupees 30,000/- with interest thereon on the ground that after filing of the suit by notice dated 27-701981, he determined the cause of action for recovery of deposit arose on 22-7-1981 when the defendant refused the claim of the plaintiff in answer to his notice dated 21-7-1981. The notice dated 6-8-1979 which is the document No. 16 shows that till that date according to the defendant the plaintiff owed to him Rs. 39,003.22 Till this date therefore, the defendant had not adjusted the amount of Rs. 30,000/- towards the dues recoverable from the plaintiff. The original claim of the plaintiff has obviously nothing to do with the claim on account of this deposit of Rs./ 30,000/- Apparently the agency of the plaintiff was not terminated till the date of the institution of the suit. Consequently there was no question of claiming back the refund of deposit of Rs. 30,000. The return of deposit and interest thereon are tow distinct claims. The plaintiff determined the agreement of agency vide notice dated 21-7-1981. The defendant vide his reply dated 31-7-81 informed the plaintiff that he owes Rs. 39,003.22 to the defendant and adjusting the deposit of Rs. 30,000/- he has to recover from him Rs. 9360.65 Thus on 3-12-1980 there was no cause of action to recover the deposit or to file suit for recovery of the same. Thus the cause of action for recovery of the deposit is distinct from the claim made initially in the suit by the plaintiff. 1. Therefore, concur in the findings arrived at by the lower court that the cause fo action for recovery of deposit is distinct from the claim made in the suit. None of the tests laid down by the Privy council in the decision cited supra, are applicable in this case and hence I hold that the provisions of O. 2, Rule 2, C. P. C are not applicable to the fact in this case. I also hold the view that Order 2, Rule 2, operates as a bar to subsequent suit and does not bar pleas in defence. The order dated 31-7-1982 passed by the learned trial court rejecting the application of the defendant under Order 2, Rule 2 read with Order 8, Rule 9, C. P.C on Ex 19 dt 23-11-1981 is perfectly just and does not suffer from any infirmity and hence it is hereby confirmed.

The result is that this revision application deserves to be dismissed and it is here by dismissed. However , in the facts and circumstances of this case, there will be no order as to costs.

11. Revision dismissed.


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