Masoom Ali Khan @APPELLANT@Hash Rameshwar

Heard the counsel for the petitioner-defendant (hereinafter ‘defendant’), as also counsel for the respondent-plaintiff (hereinafter ‘plaintiff’) and perused the impugned order dated 13.10.2009 whereby the trial court has allowed the application filed by the plaintiff under Order 8 Rule 6-C CPC and directed exclusion of the counter-claim filed by the defendant in the suit for declaration and cancellation of the sale deed dated 25.01.1984.

Mr.Saadat Ali, counsel for the defendant relied upon the judgment of the Apex Court in the case of Smt. Shanti Rani Das Dewanjee Versus Dinesh Chnadra Day (dead) by Lrs. (R.L.W. 1998 (1) SC) to contend that the counter-claim could be filed even subsequent to the filing of the written statement. He submitted that the trial court has overlooked this legal position and has cursorily without just cause allowed the plaintiff’s application under Order 8 Rule 6-C CPC and directed the exclusion of the defendant’s counter-claim.

Mr.R.K. Agarwal, Senior Counsel with Mr. Mamoon Khalid, counsel for the plaintiff submitted that the judgment in the case of Shanti Rani Das Dewanjee (supra) relied upon by the counsel for the defendant is not applicable to the facts of the instant case. He submitted that in the instant case the counter-claim was sought to be filed subsequent to the evidence of the plaintiff and the defendant having been completed in the cross-hair of Order 8 Rule 6A CPC. He submitted that even otherwise the counter-claim related to the alleged tenancy of the suit premises of which the defendant claimed to be landlord and asserted the plaintiff to be the tenant. He submitted that the defendant infact had earlier filed an eviction petition under Rajasthan Rent Control Act, 2001 (hereinafter ‘the Act of 2001’) seeking eviction of the plaintiff as his purported tenant in the suit premises inter alia on the ground of denial of title. The said eviction petition was dismissed on 12.08.2008 and appeal thereagainst under the Act of 2001 before Appellate Rent Tribunal were dismissed on 17.02.2014. S.B.C.W.P. No.5076/2014 is pending against the aforesaid concurrent findings and the dismissal of the eviction petition, before this court. It was submitted that even otherwise the civil court has no jurisdiction to address the issue of tenancy as sought to be agitated by the defendant by way of a counter-claim in view of the exclusion of its jurisdiction in such matters by the Act of

2001. Nothing perverse or patently illegal can be attributed to the impugned order passed by the trial court exercising is judicious discretion within its jurisdiction.

Heard. Considered.

Order 8 Rule 6-C CPC provides that 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 counterclaim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, 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.

It is thus evident that the trial court has discretion to exclude a counter-claim from the proceedings in the suit before it if it is so satisfied in view of the facts of the case on an application be made by the plaintiff. In the instant case the plaintiff had indeed moved an application for exclusion of the counter-claim of the defendant sought as it did to agitate his purported right as landlord over the plaintiff as alleged tenant in respect of the suit premises. In so doing, the trial court has noted the fact that the issue of tenancy agitated in the defendant’s counter-claim was the subject matter of his eviction petition under the Act of 2001 which was dismissed as also was the appeal thereagainst. And the matter was pending at the defendant’s instance before this court in a petition under Article 227 of the Constitution of India. The trial court also noted that even otherwise it has no jurisdiction to address the issue of tenancy as a civil court in view of the provisions of the Act of 2001 excluding the right of the civil court on the subject matter (tenancy) and conferring it exclusively in the jurisdiction of the Rent/Appellate Tribunals. The trial court has in the circumstances exercised its jurisdiction within the ambit of law also noting that the counter-claim was sought to be agitated in excluding the counter-claim from consideration in the suit in the exercise of its power under Order 8 Rule 6-C CPC subsequent to the evidence of both by the plaintiff and the defendant having been laid in the suit.

I am of the considered view that in the circumstances the impugned order passed has foundation of law and the Court’s judicious discretion thereunder suffers neither perversity nor illegality. No cause for interference therewith in the exercise of the jurisdiction under Article 227 of the Constitution of India obtains.

There is no force in the petition. It is accordingly dismissed.