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Kaycee Sons Electronical Engineers Vs. Dr. Smt. Malti Saxena - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 637 of 1985
Judge
Reported in1985(2)WLN471
AppellantKaycee Sons Electronical Engineers
RespondentDr. Smt. Malti Saxena
DispositionPetition allowed
Cases Referred(Manick Lal v. K.P. Chowdhary
Excerpt:
.....and eviction) act, 1950--section 7--after insertion of rule 6a in cpc in 1976 a tenant can set up counter claim of standard rent in suit for ejectment irrespective of fact that ejectment is on ground of default or not.; after the addition of rule 6a cpc, the defendant is entitled to set up counter claim of standard rent in a suit for ejectment irrespective of the fact whether the ejectment is sought on the ground of default or not.;(b) rajasthan premises (control of rent and eviction) act, 1950 - section 7 and civil procedure code--revision--maintainability of--composite order rejecting application under section 7 and striking out issue--held, revision lies.;the impugned order is composite one rejecting the application under section 7 of the act as also striking out issue no. 6. it..........has vehemently submitted that in view of order, 8 rule 6a cpc, the petitioner is entitled to plead counter claim and has placed reliance on : air1977cal312 daga films v. lotus production) and also air 1979 all l2 (vishwanath v. allahabad bank). he has further placed reliance on air 1971 rajasthan 306 (central bank of india v. govind narain) wherein a division bench of this court has held that in a suit by landlord for arrears of rent, the tenant can plead that the agreement is enforceable and it is not necessary for the tenant to file a separate suit for fixation of standard rent but he can take up this plea in the written statement. he has also placed reliance on 1972 rcr 344 (hari ram v. rajinder singh) wherein delhi high court has also held that a tenant can pray for fixation of.....
Judgment:

Surendra Nath Bhargava, J.

1. This is a revision petition against the order dated 31-7-1985 passed by Additional Civil Judge No. 2, Jaipur City, deleting Issue No. 6 and rejecting the application of the defendant petitioner under Section 7 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, here in after referred to as the 'Act'.

2. The non petitioner plaintiff filed a suit for ejectment against the defendant petitioner on the ground of material alteration and nuisance. It has been further alleged that the agreed rent was Rs. 750/- per month.

3. In the written statement, the defendant petitioner admitted the tenancy and also admitted that the rent was agreed to be Rs. 750/- per month. In the additional pleas, it was submitted that the rent of Rs. 750/- was in excess. The previous tenant was paying Rs. 425/- per month and the standard rent of the suit premises could not be more than Rs. 425/- per month and therefore, the defendant was liable to pay only a sum of Rs. 425/- per month being the standard rent and he paid a court fee of Rs. 10/- and also prayed in the written statement that the standard rent @ Rs. 425/- per month may be fixed. The plaintiff filed a rejoinder and also denied the claim of the defendant petitioner for standard rent. The trial court framed Issue No. 6 as under:

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4. On 23-2-1985, the defendant petitioner filed an application under Section 7 of the Act, praying that the provisional rent be fixed at the rate of Rs. 425/- per month. The trial court while disposing of this application held that since the plaintiff had not claimed ejectment on the ground of arrears of rent, the defendant petitioner could not ask for the fixation of standard rent or for fixing provisional rent, and rejected the said application vide order dated 31-7-1985, and while disposing of the said application, it also struck of Issue No. 6 on the ground that the defendant cannot raise such a plea. It is against this order that the present revision petition has been filed.

5. Learned counsel for the petitioner has vehemently submitted that in view of Order, 8 Rule 6A CPC, the petitioner is entitled to plead counter claim and has placed reliance on : AIR1977Cal312 Daga Films v. Lotus Production) and also AIR 1979 All l2 (Vishwanath v. Allahabad Bank). He has further placed reliance on AIR 1971 Rajasthan 306 (Central Bank of India v. Govind Narain) wherein a Division Bench of this court has held that in a suit by landlord for arrears of rent, the tenant can plead that the agreement is enforceable and it is not necessary for the tenant to file a separate suit for fixation of standard rent but he can take up this plea in the written statement. He has also placed reliance on 1972 RCR 344 (Hari Ram v. Rajinder Singh) wherein Delhi High Court has also held that a tenant can pray for fixation of standard rent in written statement irrespective of the fact that the suit for ejectment is not based on the ground of default.

6. On the other hand, learned counsel for the non petitioner has also very vehemently argued that the revision petition is not maintainable against the order rejecting the application under Section 7 of the Act as an appeal is provided under Section 22 of the Act. He has placed reliance on : [1964]2SCR567 (Laxmidas v. Nana Bhai) where in the Supreme Court has held that the right to make a counter claim is statutory right and a counter claim is not admissible in a case which is admittedly not within the scope of Order 8, Rule 6 CPC. The Supreme Court has further held in that case that if the relief prayed for by the plaintiff is not one for rendition of accoount there is no question of a defendant claiming benefit of the relief in the same suit. The benefit can be claimed only in those cases where the relief sought is common, to the parties, though arranged on either side. He has further, submitted that the Delhi High Court in Hari Ram's case (supra) has placed reliance on : [1970]2SCR390 (M.M. Chawla v. J.S. Sethi) wherein the Supreme Court had rejected the appellant's plea that the Rent Cortroller was bound to fix the standard rent when the tenant asked for its fixation in his written statement. He has also brought to my notice : AIR1976Cal115 (Manick Lal v. K.P. Chowdhary) wherein the Calcutta High Court has held that in a suit for eviction against the tenant with the allegation that the latter was a tenant and the plaintiff was entitled to the decree for eviction, any counter claim by the defendant for specific performance of contract against the plaintiff cannot be maintained. He also placed reliance on AIR 1979 Cal NOC 89 of Calcutta High Court wherein it was observed that the counter claim in law normally is a claim which a party defendant or opponent claims in excess of the claim of the suitor. It has been submitted that since the suit for ejectment was not based on the ground of default, it was not open for the defendant petitioner to set up a counter claim for fixation of standard rent and the trial court was justified in rejecting the said application.

7. I have carefully considered the arguments and also have gone through the various authorities cited at the bar and given the whole matter a serious thought, Order 8, Rule 6A CPC was inserted by the CPC. Amending Act, 1976 and prior to that, there was only Order 8, Rule 6 CPC and after addition of Rule 6A, the scope of Order 8, Rule 6 CPC has been enlarged. Counter-claim has not been defined in the Civil Procedure Code but the counter claim as given in the Shorter Oxford English Dictionary is as under:.a claim/set off against another or against the plaintiff.

8. Rule 6A of Order 8 CPC confers on the defendant as tatutory right to file a counter claim in addition to set off which was permissible under Order 8, Rule 6 CPC. The. effect of counter claim is to place the plaintiff in the position of the defendant and the plaintiff in rejoinder has a right to meet the counter claim/set off by the defendant. The intention of the legislature in enacting Rules 6-A to 6-G seems to avoid multiplicity of suits and when the parties are likely to be the same in the counter claim also, the witnesses are also likely to be the same. If the defendant is permitted to set up his counter claim, it would naturally shorten the litigation and avoid multiplicity of suits. No doubt, the defendant tenants can file suit for fixation of standard rent independently and it has to implead the landlord plaintiff and therefore, in my opinion, after the addition of Rule 6A, CPC, the defendant is entitled to set up counter claim of standard rent in a siut for ejectment irrespective of the fact whether the ejectment is sought on the ground of default or not. The authorities cited by the learned counsel for the non petitioner 1964 SC 11, 1976 Cal 115 and 1970 (2) SCR 390 are prior to the amendment of 1976 and, therefore, does not help us in deciding this revision petition.

9. The impugned order is composite one rejecting the application Under Section 7 of the Act as also striking out Issue No. 6. It cannot be disputed that a revision petition lies against striking out Issue No. 6 and therefore, I do not find any force in the arguments of the learned counsel for the non-petitioner that the revision is not maintainable as an appeal lies Under Section 22 of the Act against an order rejecting the application Under Section 7 of the Act.

10. In this view of the matter, I am inclined to allow this revision petition, set aside the order of the trial court dated 31-7-85 and direct the trial court to hear the application Under Section 7 of the Act filed by the petitioner, on merit in accordance with law and also to try Issue No. 6 along with other issues in the main case.


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