Sarojini Amma and Another vs Dakshyani Amma and Others

B.M. Thulasidas, J.—Heard.

O.S. No. 158 of 1992 pending before the Munsiff''s Court, Wadakkancherry is filed by Respondents 1 and 2 for a permanent prohibitory injunction to restrain the Petitioners herein from causing destruction to or alteration of plaint B schedule property described as a pathway as also for a mandatory injunction to restore plaint C schedule property described as a chal to its original position and for other incidental reliefs. According to them plaint B schedule pathway leading to plaint A schedule property has been in their possession and used from time immemorial for ingress and egress and that the Petitioners have no exclusive right over the same, hey also alleged that plaint C schedule water-chal situated next to the P.W.D. road was being used for draining water and that the Petitioners had destroyed it. In the written statement filed by the Petitioners, they denied the allegations and also made a counter-claim against the Respondents, who are the plain. tiffs as also respondents 3 and 4, the R.D.O. and Assistant Executive Engineer, P.W.D. (Roads). it was stated that plaint B schedule is not a pathway as described but a water chal for draining water and that Respondents 1 and 2 with the help of Respondents 3 and 4 filled it up in March 1992, that has resulted in flooding their property situated next to the puramboke land. It was further contended that complaint was made to the R.D.O. against the Respondents and eventually on the intervention of the Panchayat President, they agreed to restore plaint B schedule water-chal before the onset of the monsoon. But without abiding by and suppressing the agreement the suit was filed without bona fides. Petitioners also claimed a right to use plaint B schedule water-chal by way of easement by prescription and they therefore prayed for a declaration of their right and for a mandatory injunction in regard to plaint B schedule item and also for a prohibitory injunction with respect to plaint C schedule property. Respondents 3 and 4 were impleaded the counter-claim since they were the custodians of the puramboke property. Summons was issued to them in the counter-claim and in the statement filed under Order 8, Rule 9 Code of Civil Procedure, it was stated that the claim against them was not maintainable. The Court below considered the maintainability of the counter-claim under issue No. 1 and observed that it cannot be canvassed against persons, who are not parties to the suit-against total strangers to the suit and accordingly found that the counter claim was not maintainable as against Respondents 3 and 4, whose names were ordered to be struck out from the party array by order dated 25th January 1994, which is under challenge in this revision.

According to the Petitioners, since the counter claim has to be treated as plaint in a cross-suit it is governed by the rule applicable to a plaint. On the wording of Rule 6A of Order VIII CPC "any right or claim in respect of a cause of action accruing to the Defendant against the plaint 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" can be set up by way of counter-claim and this would include rights that have accrued incidentally against a third party also. It may sometimes become necessary that adjudication of the counter-claim made against the Plaintiff may have to be done in the presence of a third party to give a finality to the controversy. Even otherwise, impleadment of Respondents 3 and 4 could be justified under the comprehensive provision or Order I, Rule 10 Code of Civil Procedure. There are specific allegations against Respondents 3 and 4, who had joined hands with Respondents 1 and 2 to deprive the rights that have accrued to the Petitioners over plaint B and G schedule properties and therefore they are necessary parties to the counter-claim, as otherwise its adjudication would be incomplete and ineffectual. It is submitted that the Court below has misconstrued the law and its order is untenable and has to be set aside.

We are not on the question as to the maintainability of the counter-claim against Respondents 1 and 2 but whether it is necessary for its effective disposal that Respondents 3 and 4 should also be made parties to it. As stated already, Respondents 1 and 2 claimed reliefs against the Petitioners in regard to plaints B and C schedule properties with respect to which the counter-claim has been made not merely against them but Respondents 3 and 4. A counter-claim has the same effect as a cross-suit and has to be disposed of along with the main suit in which it is filed. The only limitation is that the Court should be competent to dispose of the counter-claim. As observed in Gulam v. Gulam Ahmad AIR 1956 J&K 38 a counter-claim is really a weapon that can be used against the Plaintiff as effectively as in an independent action.

The main purpose of setting up a counter-claim is to prevent multiplicity of proceedings between the parties. As observed already, it has to be treated as a plaint and is governed by the rules applicable to it. It has to contain the particulars as in Order 8, Rule 1 CPC among other requirements. Indeed "plaint" has not been statutorily defined. But it should contain necessary and relevant facts constituting the cause of action. The counter-claim need not necessarily be confined to the claim made against the Plaintiff, and if for its effective adjudication besides the Plaintiff, other interested persons should be made parties, they could be impleaded, if the Court is satisfied that without them the adjudication will be incomplete. Order 8, Rule 6A CPC does not say as to who shall be parties to the counter-claim. It appears to me the provisions as to joinder of parties under Order I, Rule 10 CPC would also apply to counter-claim, no doubt, subject to the condition that persons impleaded are necessary and proper parties for an effective adjudication of the questions involved. The submission that Order 8, Rule 6A does not enable the participation of persons who are not already parties to the suit is difficult to accept.

In this connection it has to be pointed out that the High Court of Bombay has by Order 8, Rule 15, made it clear-

Where a Defendant by a written statement sets up any counterclaim, which raises questions between himself and the Plaintiff along with any other persons, he shall add to the title of his written statement a further title similar to the title in a plaint, setting forth the names of all persons who, if such counter-claim were to be enforced by a cross-suit, and shall deliver copies of his written statement to such of them as are already parties to the suit within the period within which he is required to deliver it to the Plaintiff.

A rule on similar lines seems to be necessary here too to make the position clear and beyond doubt. But then even in its absence the Defendant would be justified in a proper case to make, besides the Plaintiff other necessary parties to the counter-claim without whose presence it could not be properly or effectively adjudicated. The claim need not be confined to or against the Plaintiff alone. A restricted interpretation in that behalf cannot be accepted, having regard to the scope and object of the counter claim, which, as stated already, has to be treated as a plaint in a cross suit.

As far as this case is concerned, the Petitioners had in their counter-claim impleaded Respondents 3 and 4 since, according to them, the disputed property is a puramboke which is vested with them and with whose connivance the Plaintiffs sought to deprive them of their right of user of a pathway over plaint B schedule property and a water-chal in plaint G schedule, through which water used to be drained out from their and other properties. Without them on the party array their claim could not have been effectively adjudicated. They are proper and necessary parties. We are not concerned with the possible outcome of the dispute or with the question whether what had been alleged in the counter-claim is true or not. It must rest upon the evidence that will have to be adduced. There is no doubt that the records relating to some previous proceedings connected with this controversy showed that the grievance of the Petitioners is well-founded, and, deserved judicial consideration. The stand taken by Respondents 3 and 4 in the instant case too to some extent supported the allegations against them.

The Court below has interpreted the provisions in Order 8, Rule 6A in a literal and mechanical manner to hold that as against Respondents 3 and 4 the counterclaim is not maintainable. Their exclusion from the party array was unwarranted. The order is unsustainable. It is accordingly set aside. The counter-claim as presented by the Petitioners will be disposed of in accordance with law.

The C.R.P is disposed of as above.