Surju Ram vs Shitla Parshad and Others

R.P. Nagrath, J.—The petitioner-defendant No. 1 has invoked the jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 1.6.2010 (Annexure P-3) and subsequent order dated 4.1.2013 (Annexure P-6). Plaintiff-respondent No. 1 filed Civil Suit No. 531 of 2009 against the petitioner and respondent No. 2-Chandigarh Housing Board, Chandigarh for permanent injunction restraining petitioner-defendant No. 1 from constructing toilet and bathroom in front courtyard of House No. 2395/A, New Indira Colony, Mani Majra, UT Chandigarh, belonging to plaintiff-respondent No. 1. This house was allotted to plaintiff-respondent No. 1 on 17.6.1993. There is a courtyard in front and backside of the house of plaintiff-respondent No. 1 and is meant for common purpose of the allottees. House of petitioner-defendant No. 1 adjoins the house of plaintiff-respondent No. 1. The petitioner-defendant No. 1 intended to construct toilet and bathroom by covering 4'' land from the front courtyard of plaintiff-respondent No. 1''s house with intention to separate two room set, without permission of respondent No. 2-Chandigarh Housing Board. The version of petitioner-defendant No. 1 in the written statement was that this complex has 5 dwelling units and are in "H" type constructions. The middle of the portion is the house of plaintiff-respondent No. 1 and there are two small courtyards in between these five houses falling on both the sides of the house of the plaintiff-respondent No. 1. In fact, plaintiff-respondent No. 1 wanted to grab both the common courtyards after having lost his case in appeal before the lower Appellate Court for which RSA-2335-2000 (Shitla Parshad v. Sarju Ram and others,) is pending in this Court. After condoning delay of 206 days, this Court passed an order on 19.9.2000 directing the parties to maintain status quo regarding construction and nature of property. Despite that plaintiff-respondent No. 1 succeeded in covering part of a courtyard by constructing staircase on the wall of petitioner-defendant No. 1. Plaintiff-respondent No. 1 also stated to have covered the common manhole under the staircase and constructed a toilet on the manhole and also affixed a water tap. By making various other averments, the suit was contested. Along with the written statement, the petitioner-defendant No. 1 also filed a counter-claim making a prayer to direct plaintiff-respondent No. 1 to open the door of his house as per layout/site plan towards house No. 2261 and 2262 and close his illegally opened door of his house towards unit Nos. 2395 and 2399. These are the houses in "H" type of construction of five houses, out of which the petitioner-defendant No. 1 is owner of one of the dwelling unit No. 2399.

Chandigarh Housing Board-defendant-respondent No. 2 moved an application under Order VII Rule 11 C.P.C. for rejection of the plaint on the ground that mandatory notice under Section 67 of the Haryana Housing Board Act, 1971 (for short ''the Act'') as applicable to Chandigarh was not served. After hearing learned counsel for the parties, the learned trial Court vide impugned order dated 1.6.2010 (Annexure P-3) held that suit was not maintainable against defendant-respondent No. 2 due to non-service of notice and, therefore, directed the plaint to be returned qua all the defendants with liberty to plaintiff-respondent No. 1 for filing a fresh suit after compliance of the aforesaid provisions.

It is apparent and not disputed that no such fresh suit was filed by plaintiff-respondent No. 1. Since the counter-claim was also filed by petitioner-respondent No. 1, he moved an application under Order VIII Rule 6 read with Section 151 C.P.C. for restoration of the counter-claim and that application was dismissed by the trial Court vide order dated 4.1.2013 (Annexure P-6).

I have heard learned counsel for the parties and perused the impugned orders as well as the paper-book.

Learned counsel for the petitioner vehemently contended that the counter-claim was to be considered as an independent suit which was required to be adjudicated upon. Learned counsel for the parties have confined their argument only with regard to the contention whether the counter-claim could be proceeded with after the plaint of respondent No. 1 was ordered to be returned for non-compliance of provisions of Section 67 of the Act. Learned counsel for respondents vehemently contended that the suit of respondent No. 1 was not dismissed or withdrawn and, therefore, the provisions of Order VIII Rule 6D C.P.C. would not be attracted. There is no dispute of the fact that the suit was filed by plaintiff-respondent No. 1 and counter-claim was set up by the petitioner relating to the subject matter. The claim in the suit filed by plaintiff-respondent No. 1 was basically against the petitioner-defendant No. 1 and respondent No. 2 was apparently a proforma party as the allegations were of the breach of rights by petitioner-defendant No. 1 whereas the counter version also was set up by the petitioner-defendant No. 1. Rule 6A of Order VIII C.P.C. reads as under:-

"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 counter claim is in the nature of a claim for damages or not:

Provided that such counter claim shall not exceed 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.

The compliance of Rule 6B of Order VIII C.P.C. was also made by the petitioner when he clearly relied upon the grounds supporting a right of counter-claim in the written statement and also claimed the relief by way of counter-claim. No application was filed by petitioner-defendant No. 1 in terms of Rule 6C of Order VIII C.P.C. for exclusion of counter-claim. The only controversy pertained to the interpretation of Rule 6D of Order VIII C.P.C. which reads as under:-

"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."

Learned counsel for the respondents, however, contended that return of the plaint neither amounts to stay of the suit or its discontinuation nor dismissal for holding that the counter-claim could be proceeded with. Learned counsel for respondents have not referred to any precedent on the subject that return of the plaint for technical defect with regard to non-service of defendant No. 2 who was primarily a proforma party could not amount to discontinuation of the suit. The nature of Rule 6D of Order VIII C.P.C. is wide and would include the kind of situation which has occurred in this case. This Rule does not refer to withdrawal of suit but indisputably the term ''discontinuation'' would include the withdrawal of suit also. Learned counsel for petitioner-defendant No. 1 relied upon short notes in Shri Paban Kumar Sarma v. Shri Hiranya Kumar Bhuyan and others, A.I.R. 2007 (NOC) 2308 (Gau.) that in spite of withdrawal of main suit by plaintiff, counter claim of defendant will proceed like an independent suit.

In Civil Appeal No. 6862 of 2014, decided on 14.10.2014 (Rajni Rani and another v. Khairati Lal and others), Hon''ble Supreme Court held as under:-

"12. On a plain reading of the aforesaid provisions it is quite limpid that a counter-claim preferred by the defendant in a suit is in the nature of a cross-suit and by a statutory command even if the suit is dismissed, counter-claim shall remain alive for adjudication. For making a counter-claim entertainable by the court, the defendant is required to pay the requisite court fee on the valuation of the counter-claim. The plaintiff is obliged to file a written statement and in case there is default the court can pronounce the Judgment against the plaintiff in relation to the counter-claim put forth by the defendant as it has an independent status. The purpose of the scheme relating to counter-claim is to avoid multiplicity of the proceedings. When a counterclaim is dismissed on being adjudicated on merits it forecloses the rights of the defendant. As per Rule 6A(2) the court is required to pronounce a final judgment in the same suit both on the original claim and also on the counter-claim. The seminal purpose is to avoid piece-meal adjudication. The plaintiff can file an application for exclusion of a counter-claim and can do so at any time before issues are settled in relation to the counter-claim. We are not concerned with such a situation."

In Aloke Bose v. Subal Paul, 2011 (5) Cal. H.C.N. 315 the High Court of Calcutta held that there was a counter-claim by defendant but suit of the plaintiff was dismissed in default despite that it was held that the counter-claim has to be proceeded with. It was held as under:-

"9. Setting up of a counter-claim in a suit is permissible in terms of Order VIII Rule 6A of the Code. It may be set up in respect of a claim for which the defendant could have filed a separate suit. Sub-rule (2) of Rule 6A ordains that a counter-claim shall have the same effect as a cross-suit, thereby enabling "the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim". In terms of sub-rule (4) of Rule 6A, the counter-claim ought to be treated as a plaint and governed by the rules applicable to plaints. A defendant setting up a counter-claim has to pay court fee. It is, therefore, substantially a cross-action. Order VIII Rule 6D further ordains that "If 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".

In view of the provisions in respect of a counterclaim, a defendant setting it up is entitled to an order of Court either way. Even if the plaintiff does not wish to proceed with the suit, the counter-claim ought to be concluded by allowing it or by dismissing it, either on merits or for non-prosecution.

The learned Judge in the process of passing the order dated August 25, 2010 appears to have proceeded oblivious of the provision in Order VIII Rule 6D of the Code. Bare perusal of the said order reveals that the suit instituted by the plaintiff/opposite party No. 1 was dismissed for default and there was no reference made to the counter-claim of the defendant No. 3/petitioner. If indeed the learned Judge while dismissing the suit for default intended that the counter-claim ought to meet the same fate, an order to this effect ought to have been recorded by him. Regrettably, it is found from the impugned order dated November 26, 2010 that the learned Judge while declining the defendant No. 3/petitioner''s prayer to proceed with the counter-claim sought to cover up the inadvertent omission in passing an order in respect of the counter-claim by reading into the order dated August 25, 2010 words, which were not there. Since there is no indication in the order dated August 25, 2010, the learned Judge erred in observing that the suit including the counter-claim was dismissed for default."

Plaintiff-respondent No. 1 could challenge the order dated 1.6.2010 (Annexure P-3) on the ground that respondent No. 2 was a proforma party and, therefore, the plaint could not have been ordered to be returned but plaintiff-respondent No. 1 did not avail of the said remedy. In that eventuality, the counter-claim could not be closed without any specific order passed by the trial Court. In fact in the order dated 1.6.2010 (Annexure P-3), there is no reference even to the fate of the counter-claim that was pending. What would be the fact of non service of notice of the counter-claim upon respondent No. 2 is not in controversy because learned counsel for the petitioner submitted that only petitioner-defendant No. 1 would proceed with the counter claim against plaintiff-respondent No. 1 without impleading Chandigarh Housing Board as a necessary party.

In view of the aforesaid discussion, the impugned orders cannot be sustained in the eyes of law and these are set aside. So far as the counter-claim of petitioner-defendant No. 1 is concerned, the trial Court has to proceed further to adjudicate the counter-claim. The petitioner and respondent No. 1 are directed to appear before the trial Court on 12.12.2014 and the trial Court shall proceed to dispose of the counter-claim in accordance with law. The petitioner of course shall have to pay the amount of Court fee as applicable on the counter-claim which is for the trial Court to determine and adjudicate upon and respondent No. 1-plaintiff would also be at liberty to file written statement to the counter-claim. In view of the above, the instant petition is partly allowed.