Heera Lal vs Shiv Kumar

Vineet Kothari, J.—The present revision petition has been filed by the plaintiff, who was defendant in counter-claim filed by the defendant in the present suit, which was purportedly filed for recovery of money only on the basis of dishonour of cheques of the defendant. Both the parties are real brothers.

The plaintiff claimed the said amount on the basis of settlement of the parties upon partition of the family properties, in which two cheques of Rs. 50,000/- each were given by the defendant-Shiv Kumar to the plaintiff-Heera Lal. Upon their dishonour, the plaintiff-Heera Lal filed the present civil suit.

Alongwith the written statement, defendant-Shiv Kumar filed a counter-claim, claiming partition of the joint family property and other reliefs.

The plaintiff filed the present application under Order 7 Rule 11 read with Order 8 Rule 6-C CPC for rejection of the said counter-claim, as it would go beyond the scope of money recovery suit filed by the plaintiff and such counterclaim, according to the plaintiff, was not maintainable.

The plaintiff also contended before the learned trial court that the defendant had a choice of filing a separate suit for the said reliefs of partition etc. claimed by him in the counterclaim.

The learned trial court however, rejected the said application on 19.10.2013 with the following observations:--

Mr. Manish Shishodia, learned counsel for the plaintiff (defendant in the counter-claim) urged that the very purpose of enacting Order 8 Rule 6-C for rejection of such counter-claim was to avoid such mixing up of the questions and issues, and a simple money recovery suit could not be converted into a partition suit by entertaining such counterclaim, and therefore, the rejection of his application by the learned court below was not justified.

On the other hand, Mr. A.K. Rajvanshy, learned counsel for the defendant (plaintiff in the counter-claim) urged that the very foundation of the claim of the plaintiff, on the basis of two cheques, which were given under some business transactions between the parties, was based on the family partition and settlement of the dispute between the real brothers, and therefore, unless a proper decree of partition, after entertaining the counter-claim of the defendant was passed by the learned trial court, the money recovery, as claimed by the plaintiff, could not be decreed, and therefore, the learned court below was justified in rejecting the application filed by the plaintiff under Order 7 Rule 11 read with Order 8 Rule 6-C CPC.

Having heard the learned counsels for the parties, this Court is satisfied that the present revision petition has no force and the same is liable to be dismissed. The right of defendant-Shiv Kumar to claim partition by way of counterclaim cannot questioned, and to avoid multiplicity of litigation, he could also file such a counter-claim in a suit filed by the plaintiff-Heera Lal, which though was apparently for money recovery only, but the entire foundation and basis of the suit was the family partition and settlement of the joint family property. Instead of only defending the suit, if the defendant claims the relief of partition of joint family property in a suit filed by the plaintiff for money recovery, such counter-claim deserves to be entertained by the learned trial court, and has rightly so been entertained by it, rejecting the application filed by the plaintiff under Order 7 Rule 11 read with Order 8 Rule 6-C CPC, the same does not call for any interference or reversal by this Court in the present revision petition, and the same is thus found to be devoid of any merit and liable to be dismissed.

Accordingly, the present revision petition is dismissed. No costs. Copy of this order may be sent to the concerned parties and the learned court below forthwith.