Counter Claim; Pulikkipoyil Salsamath Usman Vs. Pulikkipoyil Moideen Kunhi [Kerala High Court, 30-09-2016]

Civil Procedure Code, 1908 – Order 8 Rule 6A to G – Counter Claim – Procedure for – If the defendant wants to implead any party whom he or she feels required for proper adjudication of the counter claim between the plaintiffs and the defendant, raised by the defendant in the written statement, then such party can be impleaded as additional defendant in the counter claim and not in the suit.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.RAMAKRISHNAN, J.

O.P. (Civil) No.2866 of 2014

Dated this the 30th day of September, 2016

I.A.NO. 937/2013 AND I.A.NO. 938 OF 2013 IN O.S.NO. 475/2011 OF THE THIRD ADDITIONAL SUB COURT, KOZHIKODE

PETITIONER(S)/PLAINTIFF AND PROPOSED ADDITIONAL SECOND DEFENDANT

PULIKKIPOYIL SALSAMATH USMAN, KOZHIKKODE AND ANR.

BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN

RESPONDENT(S)/DEFENDANTS AND PROPOSED ADDL. THIRD DEFENDANT

PULIKKIPOYIL MOIDEEN KUNHI, KOZHIKKODE AND ANR.

R1 & R2 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH

JUDGMENT

The defendant and her minor daughter in O.S.475/2011 on the file of the 3 rd Additional Sub Court, Kozhikode have filed this petition challenging Ext.P7 and P8 orders passed by the court below under

# Article 227 of the Constitution of India

2. Respondents 1 and 2 herein filed Ext.P1 suit as O.S.475/2011 on the file of the 3 rd Additional Sub Court for recovery of an amount of 12,28,099/- from the defendant, who is the first petitioner here. It is alleged in the petition that the first petitioner herein is the widow of their deceased son Usman @ Mujeeb. Apart from the plaintiffs and the defendant in the suit, as per muslim law his children Shana Sherin and Shamna Thasnim are the legal heirs of the deceased Usman. Out of the female children of Usman, Shana Sherim died on 13.10.2008 and as per muslim law, her estate will devolve on the first plaintiff and the defendant and her sister Shamna Thasnim as her legal heirs. The first plaintiff is entitled to get 68/243 share, 2 nd plaintiff is entitled to get 36/243 share and the remaining shares will devolve on the defendant and her daughter Shamna Thasnim. The plaintiffs have released their right in the immovable properties which they inherited on the death of Usman in favour of their son Basheer. The defendant and her daughter are the co-owners of that property. Usman had taken a policy with life insurance corporation and bajaj alliance and he had shown his wife namely the defendant as his nominee. On the death of Usman, the defendant had collected the amounts with the consent of the plaintiffs and she had collected 21,20,808/- from life insurance corporation and 8,16,000/- from Bajaj Alliance insurance. But she had not paid the share due to the plaintiffs. Though they have sent a notice demanding the amount, she had sent a reply with false allegations. The plaintiffs are jointly entitled to get 12,56,905/- being their share of 104/243 in the amount, which the defendant is liable to pay. Since she did not pay the amount, the present suit has been filed by the plaintiffs for realisation of the amount.

3. The defendant who is the first petitioner herein filed Ext.P2 written statement admitting the relationship and also devolution of right on the death of her husband Usman @ Mujeeb and also receipt of the amount due under the policies in the name of Usman from life insurance corporation as well as Bajaj Alliance insurance, but submitted that the amount claimed is not correct. Certain amounts have been spent for the purpose of discharging the liability of deceased Usman @ Mujeeb. She had also raised a counter claim for partition of counter claim A schedule properties, which belonged to her late husband Usman @ Mujeeb and also claimed set off in respect of the amount used by her from the amount due to Usman @ Mujeeb for discharge of his liabilities. The respondents filed Ext.P9 replication to the counter claim which was produced along with I.A.1132/16 by the petitioners wherein they have stated that the immovable property need not be included in the suit and they have released their undivided share in the counter claim A schedule property in favour of their son Basheer, who is a necessary party to the proceedings. They have also denied that deceased had any liabilities which the counter claim plaintiff had discharged and they have no liability to contribute anything to the same. Further the valuation shown is not proper and the court fee paid is also not correct. On the basis of the replications, plaintiff filed I.A.937/13 to implead her daughter Shamna Nasnim, minor represented by the first petitioner and Pulickapoyil Basheer as additional defendants 2 and 3 in the suit and also filed I.A.938/2013 to appoint the defendant who is the first petitioner herein as the guardian of the proposed 2 nd defendant, who is a minor. The respondent filed counter to the same stating that in their suit 3 rd parties cannot be impleaded and they prayed for dismissal of the applications. The court below had by impugned Ext.P7 and P8 orders dismissed those application. Aggrieved by the same, the present petition has been filed by the petitioners, who are the O.P. (Civil) No.2866 of 2014 4 petitioners in those applications before the court below.

4. Heard Sri. S. Kannan, counsel representing Sri. Firoz K.M, counsel for the petitioners and Sri.V.V. Surendran, counsel appearing for the respondents.

5. Learned counsel appearing for the petitioners submitted that the court below was not justified in dismissing the application for impleading additional defendants and also for appointing the first petitioner as guardian of the second petitioner in the counter claim. The court below had not understood the principles behind filing of counter claim. If there are other cause of action which arose for the defendant against the plaintiffs, the defendant can raise a counter claim against the plaintiffs. It need not necessarily be on the basis of the same cause of action on which the plaintiffs had laid the claim against the defendant. It is also not necessary that counter claim can be made only in respect of money claim and not in respect of other subject matter as well. The intention behind raising counter claim is to avoid multiplicity of suits between the same parties. If at all the court below felt that they cannot be impleaded as defendants in the plaint, they can be permitted to be impleaded as defendants in the counter claim as counter claim is also to be treated as plaint for the purpose of considering the question involved in the counter claim between the parties. He had relied on the decision reported in

# Sarojini Amma v. Dakshayani Amma, 1996 (2) KLT 74

# Sukhalal v. Munsiff, Cherthala, 1997 (1) KLT 247

# P.V. George v. Bank of Madurai Ltd; 1986 KLT 406

and

# Chellappan v. Krishnankutty, 2001 (3) KLT 403

in support of his case.

6. On the other hand, learned counsel for the respondents submitted that the suit is one filed for recovery of certain amount from the defendants, who received the same from the insurance company in which the plaintiffs are also having right and it is only to realize their share that the present suit has been filed. So the claim in respect of partition of immovable properties cannot be treated as counter claim. So according to their counsel, the court below was perfectly justified in dismissing the application for impleading and also for appointment of guardian on the ground that they cannot be impleaded in the suit filed by the plaintiffs.

7. It is an admitted fact that the respondents are the parents of deceased Usman @ Mujeeb and the petitioners herein are the widow and child of deceased Usman @ Mujeeb. It is also an admitted fact that late Usman @ Mujeeb had taken life insurance policy from the Life Insurance Corporation of India and also from Bajaj Alliance Insurance showing his wife, the first petitioner herein, as the nominee. It is also an admitted fact that he was also having immovable property. It is an admitted fact that as a nominee, the first petitioner had withdrawn the amount due under the policies from the Life Insurance Corporation and Bajaj Alliance Insurance and plaintiffs/respondents herein who are parents of deceased Usman had filed the above suit for recovery of their share from the amount due under the policies on the death of their son Usman @ Mujeeb. Though the suit was filed as a recovery of their share, virtually it is a suit for partition and realistion of their share in the amount received by the first petitioner herein as a nominee of the deceased husband. So the counter claim filed by the defendants for partition of the immovable properties belonging to deceased Usman @ Mujeeb as a counter claim cannot be said to be a different cause of action or subject matter which cannot be raised as a counter claim in the same suit.

8.

# Order 8 Rule 6A to G of Code of Civil Procedure

deal with counter claim and the procedure for dealing with the same which reads as follows:

# 6A. Counter claim by defendant

(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter -claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not excded the pecuniary limits of the jurisdiction of the Court.

(2) 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 the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

# 6B. Counter-claim to be stated

Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

# 6C. Exclusion of counter-claim

where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counterclaim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.

# 6D. Effect of discontinuance of suit

If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

# 6E. Default of plaintiff to reply to counter-claim

If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim mad against him, or make such order in relation to the counter-claim as it thinks fit.

# 6F. Relief to defendant where counter-claim succeeds

Where in any suit a set-off or counter -claim is established as a defence against the plaintiff’s claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

# 6G. Rules relating to written statement to apply

The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim”

9. In the decision reported in

# Pathrose Samual v. Karumban Parameswaran, AIR 1988 Ker. 163

this court has held that:

“There is definitely some difference between ‘set off’ and ‘counter claim’. Set off is also in a sense a counter claim against the plaintiff, but in essence it is a form of defence in which the defendant while acknowledging the justice of the plainiff’s claim sets up a demand of his own to counter balance it either wholly or in part. Counter claim is substantially a cross suit. It is really a weapon of offence and enables the defendant to enforce a claim against the plaintiff as effectively as an independent action. It need not be an action of the same nature as the original action or even analogous thereto even though the claim has to be one entertainable by the court. According to the dictionary meaning it is a claim made to offset another claim especially in law whereas set off is something that counter balances or makes up for something else. The proposition that a counter claim can be made only in a suit for money cannot be accepted. There is nothing in R.6A limiting such claims to money suits in order to contend that whatever could be claimed is only the excess amount due to the defendant after setting off what is due to plaintiff under R.6. The words “in addition to his right of pleading a set off under R.6” appearing in R.6A are not capable of making such a restriction”

10. In the decision reported in

# Raman Sukumaran v. Velayudhan Madhayan, AIR 1982 Ker. 253

it has been held that:

“Rule 6A contemplates counter claim in any suit. The scheme of the new rule is to permit the defendants to set up counterclaims, which arise between the parties and which are cognizable by the Court where the suit is pending. The object appears to be to reduce pendency of cases so that cause of action and cross claim similar in nature could be clubbed together and disposed of by a common judgment”.

11. In the decision reported in

# Gaya Prasad v. Smt. Jamwanti Devi, AIR 1998 Patna 53

it has been held that:

“Rule 6A of O.8 was introduced by amendment of 1976 and the very purpose of introducing this new rule on the recommendation of the Law Commission of India was to avoid multiplicity of the proceedings inasmuch as ignoring the frame of suit and giving right to the defendant to raise not only the plea of set off but also counter claim by setting up rights to himself irrespective of the fact whether the cause of action for counter claim had accrued afterwords of the filing of the suit. From the wordings and plain reading of Rule 6A of Order VIII it is clear that it contemplates counter claim with respect to any suit without having any restriction. Order XX, Rule 19(1) cannot restrict harmonious reading of Order VIII, Rule 6A rather if it is restricted in that sense then the whole purpose of introduction of new Rules 6A to 6G would be frustrated.”

In that case the Patna High Court has held in a suit for eviction the defendant is entitled to set up a claim for title in himself as counter claim and such a counter claim is maintainable.

12. In the decision reported in

# Mohinder Singh Jaggi v. Data Ram Jagannath, AIR 1972 SC 1048

it has been held that:

“Where in a suit for recovery of certain amount on the basis of Khata, the defendant by his additional written statement puts forward a counter claim for accounting arising out of transactions between him and the plaintiff on the basis of an agreement and the Supreme Court has held that the written statement can be treated as a cross claim.”

13. In the decision reported in

# Manikchand Fulchand Katariya v. Lalchand Harakchand Katariya, AIR 1994 Bom. 196

it has been held that

“counter claim is not limited to money suit alone. In a suit for ownership and possession when the defendants sets up title and possession in himself, decree granting possession of suit premises in favour of the defendant passed on the basis of the counter claim is perfectly justifiable.’

14. In the decision reported in

# Jag Mohan Chawla v. Dera Radha Swami, Satsang and others, AIR 1996 SC 2222

it has been held that:

“In a suit for injunction, counter claim for injunction in respect of the same or a different property is maintainable. A defendant can claim any right by way of a counter claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. In sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action on the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words “any right or claim in respect of a cause of action accruing with the defendant” would show that the cause of action from which the counter claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff”.

15. In the decision reported in

# Rohit Singh and others v. State of Bihar (now State of Jharkand), AIR 2007 SC 10

it has been held that

“counter claim cannot be be raised after framing of issues and counter claim directed solely against co-defendants cannot be maintained. The court cannot proceed and grant decree in favour of said co defendant only on the basis that no answer has been filed to their counter claim by other defendants”.

16. In the decision reported in

# Gurbachan Singh v. Bhag Singh and others, AIR 1996 SC 1087

it has been held that

“in a suit for injunction, the claim for possession by defendant also can be entertained by virtue of Order 8 Rule 6(A)(1) of Code of Civil Procedure.

17. In the decision reported in

# Bollepanda P. Poonacha v. K.M. Madapa, (2008) 13 SCC 179

it has been held that

“a counter claim has been made on the basis of subsequent trespass by the plaintiff cannot be entertained as cause of action for filing the counter claim cannot be said to have arisen prior to the filing of the written statement”.

18. In the decision reported in

# Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508

it has been held that

“right to file counter claim runs with right of filing written statement. If no written statement is filed, no counter claim can be entertained.”

19. In the decision reported in

# Rohit Singh and others v. State of Bihar (now state of Jharkhand) and others, (2006) 12 SCC 734

it has been held that

in order to maintain a counter claim, it has be directed against the plaintiff though incidentally or along with it, it may also claim relief against co defendant.

20. In the decision reported in

# Vijay Prakash Jarath v. Tej Prakash Jarath, 2016 (6) SCJ 8

it has been held that

“cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence and not thereafter”.

21. So it is clear from the above dictums that counter claim need not be restricted to the cause of action on the basis of which the plaintiffs had raised the claim and it can be a different cause of action and not even having nexus with the cause of action raised by the plaintiffs but it should be between the same parties and that had accrued to the defendants prior to the filing of the written statement or deliver his defence or right to deliver his defence expires. It need not necessarily be in respect of the same subject matter as well but counter claim can be entertained only against the plaintiffs and it cannot be claimed only against co defendants alone but if it was directed against the plaintiff incidentally relief can be claimed in respect of co defendants as well and in such cases counter claim is maintainable as against the plaintiffs as well as co defendants. It is also settled law that counter claim cannot be raised after issues are framed and after the defence is delivered by the defendants.

22. The question as to whether a third party can be impleaded in order to consider the question on counter claim has been considered by this court in the decision reported in Sarojini Amma‘s case (cited supra) where it has been held that:

“Counter claim not necessarily confined to claim made against the plaintiff. Addition of other interested parties cannot be said to be in contravention of Rule 6A if the court is satisfied that without them the adjudication will be incomplete”. Further in the same decision it has been held that the additional parties can be impleaded in the counter claim as additional defendants if they are also necessary parties to effectively adjudicate the matter as the counter claim is treated as plaint in the cross suit”.

23. In the decision reported in Sukhalal‘s case (cited supra) this court has held that: “Order 8 Rule 6A does not require counter claim to be in the written statement itself. It should be before the expiry of time for delivering his defence. There is no requirement in the said rule that the counter claim should form part of the written statement”.

24. It is also held in the same decision that:

“The counter claim need not be connected with the original cause of action/matter pleaded by plaintiff. The words “any right of claim in respect of a cause of action accruing with the defendant” would show that the cause of action from which the counter claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit.”

25. In the decision reported in P.V. George‘s case (cited supra), it has been held that

“Impleading at the instance of the defendant can be done if found that such impleadment is necessary for effective adjudication.”

26. In the decision reported in Chellappan‘s case (cited supra) it has been held that

“it is proper to implead a person who has direct interest in property as additional defendant so as to avoid multiplicity of suits. The interest should be direct, legal and not commercial.”

In that decision this court has relied on the dictum laid down in

# Vishnu Naboothiri v. Sankara Pillai, 1968 KLT 692

where Justice Krishna Iyer as he then was quoted the following passage from Mulla’s C.P.C. Vol.1 which reads as follows:

“The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the plaintiff. It is whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of his rights. It is not enough that the plaintiff’s right, and rights which the person desiring to be made a defendant wishes to assert should be connected with the same subject matter. The intervenor must be directly and legally interested in the answers to the questions involved in the case. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights.”

27. It is clear from the above dictums that, a third party can be impleaded to consider the question of counter claim, if the court is of the opinion that their presence is required for proper adjudication of the counter claim between the counter claim plaintiffs and the counter claim defendant. Further in the decision reported in Sarojini Amma‘s case (cited supra), the question arose when certain parties were impleaded as respondents in the counter claim, the validity of the same was challenged and this court has held that in order to determine the counter claim between the parties if the presence of non party to the plaint is also required, then they can be impleaded as defendants in the counter claim though defendants are not entitled to implead them as additional defendants in the plaint.

28. In this case, the petitioners wanted to implead Basheer son of the plaintiffs to whom the plaintiffs have released their rights in the immovable property inherited by them as legal heir of late Usman as contended by them in the plaint as well as in their replication and as also the second petitioner herein as supplemental defendants in the suit and also appoint the first petitioner as guardian of the second petitioner. The right to implead in the suit is always on the plaintiffs as they are the masters of the suit. If a third party wanted to come on record by himself, then he can file an application to implead himself in the suit and if the court is satisfied that he can be impleaded and his presence is required for proper adjudication of the case, then the court can allow the third party to be impleaded in the suit. But the defendant had no right to get any third party to be impleaded in the plaint. If the defendant wants to implead any party whom he or she feels required for proper adjudication of the counter claim between the plaintiffs and the defendant, raised by the defendant in the written statement, then such party can be impleaded as additional defendant in the counter claim and not in the suit. So under such circumstances, though the court below had come to a conclusion that no third party can be impleaded which appears to be not correct, but the ultimate result of the petition dismissing the same is right because the defendant is not entitled to implead any third party as additional defendants in the suit but if they want, they can file an application to implead them as additional defendants in their counter claim. So under such circumstances, this court is of the view that dismissal of the application by the court below is not sustainable for the reasons stated in the order, but the same is found to be justifiable for the reasons mentioned above. If the petitioners file an application to impead a party whom they want to implead for proper adjudication of the counter claim in the counter claim as additional defendants, the court below is directed to consider the same and pass appropriate orders in that application taking into consideration the principle on this aspect discussed by the court in the judgment. Further whether the counter claim will have to be proceeded along with the suit claim or it will have to be relegated to a separate suit as contemplated under Order 8 Rule 6(c) of the Code can also be considered by the court when such a contention has been raised by the counter claim defendants who are the plaintiffs in the suit as required to be decided under that provision in accordance with law.

So under such circumstances, this court feels that there is no necessity to interfere with the order passed by the court below invoking the power under Article 227 of the Constitution of India, but leaving liberty for the petitioners to file an application to implead them as additional defendants in the counter claim raised by the defendant in the written statement and subject to consideration of the contention to be raised under Order 8 Rule 6(c) of the Code by the counter claim defendants, this petition is disposed of.

With the above directions and observations this petition is disposed of. Registry is directed to communicate a copy of this judgment to the court below at the earliest.

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