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Sahebrao Vithoba Pawar Vs. Bapurao Ravji Pawar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appl. No. 878 of 1983
Judge
Reported inAIR1985Bom426; 1985(2)BomCR256; (1983)86BOMLR623; 1985MhLJ130
ActsCode of Civil Procedure (CPC), 1908 - Order 8, Rule 6A
AppellantSahebrao Vithoba Pawar
RespondentBapurao Ravji Pawar
Appellant AdvocateA.P. Vaze, Adv.
Respondent AdvocateP.K. Hushing, Adv.
Excerpt:
.....17 - application for amendment of written statement in which counter-claim sought to be set up -- counterclaim sought having no connection with defence or with cause of action pleaded -- amendment whether should be allowed -- 'scope and limit of counter-claim under order viii, rule 6a indicated.;the underlying principle of the provisions contained in rule 6a of order 8 of the code of civil procedure as enacted by the amending act of 1976 is enabling so as to avoid multiplicity of proceedings, permitting a defendant to set up a counter-claim against the claim of the plaintiff, but that is not to say that any and every claim could be so set up in any suit by mere reason of identity of parties, i.e., plaintiffs or defendants. it is implicit that counter-claim necessarily must be..........he prayed for the relief of permanent injunction against the petitioner-defendant. thus, the suit claim is one for interdictory relief on the basis of title and possession to the property. being gat no.242.3.the defendant filed his written statement denying these allegations that he was trying to trespass into gat no.242, which is the property of the plaintiff. he alleged that in fact, the plaintiff was trying to trespass upon the property of the defendant. after filing this written statement, which contains other assertions with regard to gat no.242, the defendant purported to file an amendment application on sept. 13,1982 seeking to allege that the plaintiff had encroached upon his land to the extent of 16 acres. he further stated that that was so established before the revenue.....
Judgment:
ORDER

1.This is the original defendant's civil revision application against an order refusing amendment which sought to set up a counter-claim.

2. The following facts are not in dispute. At Village Sonawadi, Tahasil Daund, District Pune, the respondent-plaintiff claimed that he is the owner of Gat No. 242 and towards its east is situated Gat No. 244. On Mar. 14,1978, the respondent-plaintiff filed the suit on assertion that he was the owner and in peaceful possession of all that area of Gat No.242 and further that the petitioner-defendant is trying to trespass in Gat No.242 and threatening to construct a house in the area which forms part thereof. The respondent-plaintiff alleged that, in fact, Gat No.242 is under cultivation and crops were standing therein. In spite of this, the petitioner defendant was trying to enter, contrary to law and by use of force. On these allegations, he prayed for the relief of permanent injunction against the petitioner-defendant. Thus, the suit claim is one for interdictory relief on the basis of title and possession to the property. being Gat No.242.

3.The defendant filed his written statement denying these allegations that he was trying to trespass into Gat No.242, which is the property of the plaintiff. He alleged that in fact, the plaintiff was trying to trespass upon the property of the defendant. After filing this written statement, which contains other assertions with regard to Gat No.242, the defendant purported to file an amendment application on Sept. 13,1982 seeking to allege that the plaintiff had encroached upon his land to the extent of 16 Acres. He further stated that that was so established before the revenue authorities. On that basis, he wanted to amend the written statement and set up a counter-claim so as to recover 16 acres of land from the plaintiff. That amendment was rejected.

4. In this Court, Mr. Vaze the learned Counsel appearing in support of the civil revision application, relied on the provisions of O. 8, R. 6A of the Civil P.C. 1908 (hereinafter called as 'the Code'). He submitted that the recovery of the encroached portion, as alleged by the defendant, would be a counter-claim against the claim of the plaintiff and, therefore, should have been allowed, instead of driving the defendant to file a separate suit.

5. Even assuming that this could be regarded as a counter-claim, the claim of the plaintiff was that of merely an injunction and did not seek any possession of property. Question is, could the defendant, therefore, seek recovery of property against such a claim? Under O. 8, R. 6A of the Code, the defendant was bound to raise such claims before he had delivered his defence or by written statement and not by amendment of the defence. That would be enough to reject such a claim.

6. Further statutory provisions contained in the matters of raising counter-claim are clearly governed by O. 8, R. 6A of the Code as enacted by the Amending Act, of 1976. Once properly raised before the defendant has delivered the defence or before the time limited for delivering such a defence, the Court has the power to treat such counter-claim as the plaint in a cross-suit and try the same as cross-suit along with the suit, i.e., the claim and the counter-claim together. The underlying principle of these provisions is enabling so as to avoid multiplicity of proceedings, permitting defendant to set up such a counter-claim against the claim of the plaintiff, but that is not to say any and every claim could be so set up in any suit by mere reason of identity of parties, i.e., plaintiffs or defendants. It is implicit that counter-claim necessarily must be concerning any right or claim in respect of the cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit and be such which can be set up against the claim in suit. Unless these qualifications are satisfied, the same cannot be covered by O. 8, R. 6A of the Code. For this, the character of the claim that can be set up by the defendant in addition to his right of pleading a set-off assumes importance and calls for scrutiny. See Laxmidas v. Nanabhai, : [1964]2SCR567 , and Mohinder Singh v. Data Ram, AIR 1972 SC

7. The terms of the rule 'by way of counter-claim against the claim of the plaintiff' followed by the term 'any right or claim' goes to show that in law's postulate there has to be some identity or connection between the claim and counter-claim or between the causes of action enabling parties to seek redress. Totally different and divorced causes of action are surely, not intended to be clubbed or grouped nor could, as such, be tried in one suit. If such a liberal and uncontrolled meaning is given, anomalous positions would arise and even prejudicial effects would ensue. It cannot be forgotten that these provisions are enabling and meant to further defences. These arc in the nature of an additional facility to the defence which can be of set-off against the claim and further seek and set up counterclaim. Conceptually, set-off and counter-claim are of the same specie; one seeking wiping out of the liability and other over and above the same and even independently setting up a right to a decree against the plaintiff. Therefore, the character of such a claim pleaded always falls for careful scrutiny. The central consideration should be to find out the character of the claim and compare the same with the counter-claim set up in defence. Key words of the rule counter-claim against the claim of the plaintiff brings out the legislative intent in this regard. 11 such a counter-claim should have relevance and concern as against the claim set out by the plaintiff, then it would be quite permissible to try the same along with the claim. This is amply clear by the language employed that goes to emphasise that such a counter-claim can be set up by reason of defence and while answering the claim itself and not independent of such defence. The operative and operational words being clear that would permit a trial of such defences based on counter-claims against the claim of the plaintiff having reference or relevance to the latter. Unless, therefore, it can be raised by way of defence to the claim in suit, although being of an independent entitlement, counter-claims cannot be tried along with the claim. Once such relevance is established, entitlement follows notwithstanding that the cause of action for it might have accrued even after the suit was filed.

8. Ordinarily, there could be no objection to permit amendments, but it does appear even from the application for amendment that the alleged counter-claim hardly had any connection with the defence or with the cause of action pleaded. The injunction suit had been filed in Mar. 1978 on the basis of an alleged attempt to trespass of Feb.1978. The alleged counter-claim states that the encroachment and completed trespass upon the property of the defendant was in 1976 and the cause of action arose on Jan. 31,1981. i.e. after the filing of the suit by the plaintiff. This itself shows that the nature of the grievance raised by the defendant is altogether independent and is not by way of defence. It has nothing to do with the claim of the plaintiff nor could be styled as one against it. The claim in suit is simple enough, in that the plaintiff is the owner of the property, being Gat No.242, and is in possession thereof. By reason of that, the defendant is not entitled to trespass upon all that land which forms part of Gat No.242. On the other hand, the counter-claim sought to be introduced created an altogether different controversy, in that the plaintiff had encroached upon the property of the defendant to the extent of 16 Acres. Surely, that is no defence to claim nor can be a counterclaim against it.

9. That being apparent and obvious, reliance of Mr. Vaze on O. 8, R. 6A of the Code does not assist him. However, this does not affect his right to file a separate suit for recovery of his property according to law.

10. In the result, the trial Court was right in rejecting the application. No interference is called for. Rule discharged with no order as to costs. The order as to stay of the suit, to stand vacated.

11. Revision dismissed.


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