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Munshi Ram and ors. Vs. Radha Kishan (Decd.) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 475 of 1973
Judge
Reported inAIR1975P& H112
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 - Order 8, Rule 6
AppellantMunshi Ram and ors.
RespondentRadha Kishan (Decd.) and ors.
Appellant Advocate Harbans Lal, Adv.
Respondent Advocate G.S. Grewal, Adv.
DispositionAppeal allowed
Cases ReferredGovindiii Jevat and Co v. Cannanore Spinning and Weaving Mills Ltd.
Excerpt:
.....or such a suit brought by munshi ram had been dismissed on may 1, 1965. they had the independent right to redeem the land and the aforesaid failure on the part of har bhagwan and munshi ram could not defeat their right to redeem the land. bhan devi and vidya devi,may, if they so like, amplify their plea of redemption of land contained in the said written statement by putting in additional statement......of the land. the pleadings of the parties gave rise to the following issues:1. whether the suit land had been under mortgage with the plaintiff for the last more than 60 years, if so, its effect opp. 2 .whether the defendant filed an application for redemption of the suit land and was rejected on 19-12-1963 and the defendant filed a suit for possession of the land in dispute which was also dismissed on 1-5-1965. if so, its effect? 3. whether the defendant withdrew the aforesaid suit with condition to file fresh suit on payment of rs. 10/- as costs and as such is debarred from setting up the counter-claim for redemption opp. 4. whether the suit land had been under mortgage with the plaintiff for 60 years, or less than 60 years, at the time of setting up the counter-claim if so,.....
Judgment:

Muni Lal Verma, J.

1. Smt. Naraini mortgaged land, measuring 69 Kanals, 13 Mar-las, with Radha Kishan for Rs. 634/- on Phagun 7, 1994. Bk. She died leaving behind her daughter Smt. Bhagi. She (Smt. Bhagi) too died leaving behind her sons, viz., Ved Parkash alias Baldev Raj (Respondent 2), Munshi Ram and Har Bhag-wan. and two daughters, viz., Smt. Bhan Devi and Vidya Devi. Baldev Raj died issueless. He had sold his share in the land to Ranjodh Singh, Ranjit Singh, Ranbir Singh and Surjit Kaur. Har Bhag-wan died leaving behind his widow, Smt. Barma Devi, son Mahesh Chand, and daughters Narma Devi and Bimla Devi, who are respondents in this appeal. Radha Kishan had died during the pendency of this appeal and his adopted son SukhdevDass had been brought on record in his place.

2. On August 9, 1966, Radha Kishan brought suit for possession of the aforesaid land, alleging that it had been mortgaged with him for more than sixty years back and he had been in its possession. It was averred that some of the mortgagors had made an application for redumption of the land under the provisions of the Redemption of Mortgages (Punjab) Act II of 1913, which was dismissed by the Collector, Bhatinda. on December 19, 1963. and thereafter the suit brought by them under Section 12 of the said Act had been withdrawn and was consequently dismissed, and that the mortgagors had taken forcible possession of the land some time or about the year 1965. Ranjodh Singh, Ranjit Singh. Ranbir Singh and Surjit Kaur had, however, settled the matter with Radha Kishan and had redeemed land, measuring 17 Kanals 17 Marias, and Radha Kishan had compromised with them. The suit was contested by the defendants on various pleas and Munshi Ram. Bhan Devi and Vidya Devi laid a counter-claim for redemption of the land. The pleadings of the parties gave rise to the following issues:

1. Whether the suit land had been under mortgage with the plaintiff for the last more than 60 years, if so, its effect OPP.

2 .Whether the defendant filed an application for redemption of the suit land and was rejected on 19-12-1963 and the defendant filed a suit for possession of the land in dispute which was also dismissed on 1-5-1965. If so, its effect?

3. Whether the defendant withdrew the aforesaid suit with condition to file fresh suit on payment of Rs. 10/- as costs and as such is debarred from setting up the counter-claim for redemption OPP.

4. Whether the suit land had been under mortgage with the plaintiff for 60 years, or less than 60 years, at the time of setting up the counter-claim If so, its effect and what is the mortgage amount OPD. (Objected to).

5. If Issue No 4 is proved whether the defendant Mahesh Chander is entitled to redeem the property If so on payment of what amount ?

6. Relief.

3. Issue No. 1 was decided in the affirmative. It was held under Issues Nos. 2 and 3 that Har Bhagwan and Munshi Ram had moved application for redemption of the land, which was dismissed on December 19, 1963, and thereafter Munshi Ram had brought suit under Section 12 of Act II of 1913, which was dismissed on May 1, 1965. as withdrawn with permission to institute fresh suit on the same cause of action on payment of Rs. 10/-as costs and, therefore, the counter-claim for redemption of the land having been made on February 1, 1969, was barred by time and it (the counter-claim) was also not entertainable because it had not been made on the first hearing of the suit. It was found under Issue No. 4 that land measuring 51 Kanals 16 Marias stood mortgaged with Radha Kishan for Rupees 475/-. but it could not be redeemed because the counter-claim was barred by time. No finding was recorded on issue No. 5. As a result of the aforesaid findings, Radha Kishan was granted decree for possession of land measuring 51 Kannis 16 Marias. Aggrieved by the said decree, Munshi Ram, Bhan Devi and Vidya Devi preferred appeal, which was dismissed by the Senior Subordinate Judge (with enhanced appellate powers), Bhatinda. So, they have come to this Court in second appeal.

4. The pleas which are open to a defendant to defeat the relief sought by a plaintiff in a suit may be of adjustment, set-off and counter-claim. However, the scope, nature etc.. of these pleas are different. The pleas of adjustment and set off are primarily of defence nO court-fee is required on a plea of adjustment, but court fee is payable on pleas of set-off and counterclaim. A set-off may be legal or equitable. In a legal set off it is not necessary that the amount claimed should be ascertained. Plea of legal set off is recognised by the provisions contained in Rule 6 of Order VIII, Civil Procedure Code. The said rule, however, does not take away from the parties right to claim equitable set off. which I think is recognised in this country apart from the aforesaid provision. Plea of legal set off, having been recognised by the aforesaid provision, can be raised as of right and the Court is bound to entertain and adjudicate upon it, when raised, in the same suit. But equitable set off cannot be claimed as a matter of right and the Court has a discretion to adjudicate upon a plea of equitable set off in the same suit or to order it to be dealt with in a separate suit. A set off is a statutory defence to a plaintiff's action, whereas a counter-claim is substantially a cross-action. To put it differently, a set-off is a ground of defence, a shield and not a sword, which if established would afford an answer to the plaintiff's claim wholly or pro tanto, while a counter-claim as such affords no defence to a plaintiff's claim, but is a weapon of offence which enables a defendant to enforce a claim against the plaintiff effectually as an independent action. A counter-claim may be set up only in respect of claim as to which the party can bring independent action in the Court in which the counter action is brought, yet it (counter-claim) need not be an actionof the same nature as the original action or even analogous thereto. Though there is no provision in the Code of Civil Procedure for making a counter-claim, a Court has got the power to treat the counter-claim as a cross-suit and hear the original suit and the counter-claim together if the latter (counter-claim) is properly stamped. I am supported in this view by Laxmidas Dayabhai Kabrawal v. Nanabhai Chuni Lal Kabrawala AIR 1964 SC 11, and Ghulam v. Ghulam Ahmad AIR 1956 J. & K, 38. Besides the the other varying considerations that may apply to a set off and a counter-claim, the point of time for purposes of limitation would be different in both the cases. In the case of set off, the relevant time for considering whether the claim of the defendant put forth as set off. legal or even equitable, is barred by limitation or not, is the date of the institution of the suit and not the date when the written statement claiming the set off was put in. It. is otherwise in the case of counterclaim. In that case (i.e., in the case of counter-claim) the material point of time would be the date when the written statement was filed and not the date of suit. In other words, it has to be considered as to whether the counter-claim is within time or not on the date when the written statement containing it was filed, and not when the suit was instituted by the plaintiff. It may be noted here that when a defendant claims in a suit an amount from the plaintiff below or up to the plaint claim, it is a claim for set off stricto sensu, but when the counter-claim is for an amount larger than the plaint claim, the claim for the excess over the plaint claim has to be considered as counter-claim. Similar view was taken in Govindiii Jevat and Co v. Cannanore Spinning and Weaving Mills Ltd., AIR 1968 Ker 310.

5. Shri Harbans Lal. learned Counsel for the appellants, submits that counter-claim should have been treated as a cross-suit and that the same may now be converted into a cross-suit. He is supported by Laxmidas Dayabhai Kabrawal's case AIR 1964 SC 11 and Ghulam's case AIR 1956 J and K 38 (suprat in that submission. The allegations made in para. 3 of the legal objections and the relief claimed in para. 12 of the written statement put in by Munshi Ram, Bhan Devi and Vidya Devi on February 1. 1969, leave no room for doubt that they pleaded that land measuring 51 Kanals 16 Marias stood mortgaged with Radha Kishan and they claimed redemption of the same on payment of mortgage money of Rs. 475/-. They had also paid court-fee of Rs. 28/- on the said relief claimed by them. Therefore, it cannot be gainsaid that the aforesaid written statement contained counterclaim for redemption of the land by Munshi Ram, Bhan Devi and Vidya Devi. Initially, the said counter-claim should have been treated as cross-suit. But when the same has not been so treated, it can now, which rather appears to be just and proper in view of the law laid down in Laxmidas Dayabhai Kabrawal's case (supra), be converted into a cross-suit. When this is so allowed, as I do. the consequence would be inevitable that the case has to be remanded to the trial Court for treating the aforesaid prayer, made for redemption of the land in the written statement, as plaint in a cross suit after allowing necessary amendments thereto, if so prayed for by Bhan Devi and Vidya Devi, and allowing the plaintiff-respon-dents to put in replication thereto which would be treated as written statement in the cross suit.

6. The land was mortgaged with Radha Kishan by Smt. Naraini on Phagun 7. 1984, Bk. vide copy of the mutation (Exhibit P.4). The said date corresponds to January 15, 1938. The period for redemption of land as prescribed Dy Article 148 of the Limitation Act, 1908. was 60 years. It was reduced to 30 years by Article 61 of the Limitation Act, 1963, which came into force on January 1 1964. Section 30 of the latter Act, i.e., the Limitation Act. 1963, as amended by Limitation Amendment Act No. 10 of 1969, provides that any suit for which the period of limitation is shorter than the period prescribed by the Indian Limitation Act, 1908, may be instituted within a period of 7 years next after the commencement of the Act, i.e., of 1963. The said seven years if counted from January 1. 1964, when the new Limitation Act had come into force, expired on December 31, 1970. Therefore, the mortgagors could redeem the land at any time till December 31, 1970. This was a statutory right available to them. The counter-claim was made by Munshi Ram, Bhan Devi and Vidya Devi on February 1, 1969. i. e., within the time allowed for redemption of the land vide Article 61 read with Section 30 of the Limitation Act, 1963. Har Bhagwan and Munshi Ram had alone made application for redemption of the land under the provisions of Act No. II of 1913 (vide Exhibit P. 3). Thereafter, Munshi Ram alone had filed suit under Section 12 of the aforesaid Act and the same was dismissed on Mav 1, 1965 (vide Exhibit P-2). Sarvshrimati Bhan Devi and Vidya Devi were neither parties to the aforesaid application nor to the aforesaid suit. Therefore, the circumstance that Har Bhagwan did not bring any suit under Section 12 of the aforesaid Act within one year from the dismissal of the application moved for redemption of land, could, at the most, debar him from claiming redemption of the land and the dismissal of the suit on May 1, 1965. brought by Munshi Ram, could debar him from claiming redemption of land.But there is nothing on record and I have not been referred to any material or law by Shri G. S. Grewal, learned Counsel for the respondents, to show that the statutory right to redeem the land available to Sarvashrimati Bhan Devi and Vidya Devi could be abrogated or taken away simply because Har Bhagwan had failed to institute the suit within one year from the dismissal of the application, or such a suit brought by Munshi Ram had been dismissed on May 1, 1965. They had the independent right to redeem the land and the aforesaid failure on the part of Har Bhagwan and Munshi Ram could not defeat their right to redeem the land. In that view of the matter, the findings of the Courts below on Issues Nos. 2, 3 and 4, that the counter-claim so far as it pertains to Bhan Devi and Vidya Devi was barred by time, may not be accepted to be correct.

7. Since the plaint was amended on January 1, 1969. this entitled to appellants and other defendants to put in the amended written statement. The said amended written statement, which contained the counter-claim, was put in on February 1, 1969. Therefore, in my opinion, the counter-claim made in the aforesaid amended written statement could not be disregarded simply because it had not been put forth in the written statement, which was filed to the original plaint, on December 7, 1966. I would have gone into these matters further, but I refrain to do so, lest my expression of views may embarrass the trial Court in recording findings on matters which would form the subject of issues which would arise during the trial of the counter-claim as cross-suit. Bhan Devi and Vidva Devi cannot now be directed to institute independent suit for redemption of the land for the obvious reason that limitation for such a suit might not be now available to them.

8. It, thus, follows from the discussion above that the judgments and decrees recorded by the Courts below cannot be upheld because their findings on Issues Nos. 2, 3 and 4 are not readily acceptable, and the counter-claim made by Munshi Ram, Bhan Devi and Vidya Devi in the written statement nut in on February 1, 1969, has to be tried and dis-posed of as cross-suit

9. Consequently. 1. allowing this appeal, set aside the judgment and decree under appeal and remand the suit to the Court of Subordinate Judge First Class, Bhatinda, which was presided by Shri P. K. Garg on October 16, 1969, with the direction that the written statement put in by Munshi Ram, Bhan Devi and Vidya Devi on February 1. 1969, should be treated as plaint in the cross-suit. They, viz.. Munshi Rani. Bhan Devi and Vidya Devi,may, if they so like, amplify their plea of redemption of land contained in the said written statement by putting in additional statement. The replication put in by Radha Kishan on April 22, 1969. would be treated as objections to the aforesaid claim. Sukhdev Dass respondent would also be at liberty to amplify his aforesaid replication. Fresh issues arising from the pleadings of the parties, consisting of the aforesaid written statement containing counter-claim and its amendment, if any and the replication or further objection, if any, taken by Sukhdev Dass. shall be framed. The parties shall be afforded opportunity for producing fresh evidence and they can rely on the evidence alreadv produced. The issues already framed may be suitably amended, especially when, as pointed out above, the period of limitation for redemption is now 30 years. The suit brought by Radha Kishan for possession of the land and the cross-suit for redemption of the land would then be consolidated and shall be disposed of according to law. Costs shall abide the event. The parties have been directed, through their counsel, to appear in the trial Court, which is now presided by the successor of Shri P.K. Garg, on November 18, 1974.


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