In the case of Jag Mohan Chawla Vs. Dera Radha Swami Satsang A.I.R. 1996 (S.C.) 2222, the Apex Court has held that 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 get the same cause of action adjudicated without relegating the defendant to file a separate suit. In sub-Rule 1 Rule 6A, the language is so couched with words of wide width as to able the parties to bring his 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 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
had any nexus with the cause of action of the plaintiff. The Apex Court in the case of Guruwachan Singh Vs. Bhag Singh A.I.R. 1996 S.C. 1087 reiterated the same view.
7. In A.I.R. 1998 Patna 53 Gaya Prasad (Supra), this Court has considered both the decisions relied upon by the respondent herein and then in view of the decision of the Apex Court, the said Division Bench decisions were not followed. In this decision, this Court has followed the Apex Court decision and clearly held that in eviction suit, counter claim by the defendant can be made claiming title.
8. In view of the above settled principle of law laid down by the Apex Court followed by this Court, the learned Court below has wrongly observed that there must be some nexus between the claim of the plaintiff and the claim of the defendant in the counter claim. This view of the learned Court below is contrary to the view taken by the Apex Court as well as by this Court and, therefore, in my opinion, the Court below has not exercised a jurisdiction vested in it by law and the order passed by the Court below is contrary to settled law.
Civil Writ Jurisdiction Case No.18536 of 2011 Sri Sanjeev Choudhary & Anr
Versus
Smt.Sunita Choudhary & Anr
----------------------------------
ORDER
05. 13.12.2011.
1. I have heard the learned senior counsel, Mr.
Ramesh Kumar Chaudhary on behalf of the petitioner and the learned counsel, Mr. Chitragupta Prasad on behalf of the respondent.
2. By the impugned order dated 02.08.2011, the Subordinate Judge Xth Patna rejected the counter claim filed by the petitioner under Order 8 Rule 6A C.P.C. in eviction suit No.1 of 2004. The plaintiff-respondent filed title eviction suit No.1 of 2004 for eviction of the defendant-petitioner on the ground of default.
3. The defendant-petitioner filed written statement and counter affidavit claiming a relief of partition with regard to the suit property. According to the petitioner, he is the co-sharer of the subject matter of the eviction suit. The learned Court below rejected the counter claim on the ground that there is no nexus between the claim made by the plaintiff in the suit and claim set up by the defendant by way of counter claim.
4. The learned counsel for the petitioner submitted that the learned Court below has wrongly considered the provision of Orders 8 Rule 6A C.P.C. According to the learned counsel in eviction suit, counter claim can be made by the defendant claiming title and it is not necessary that there must be nexus between the claim of the plaintiff and the claim of the defendant -2-
in the counter claim. The learned counsel relied upon a decision of this Court reported in A.I.R. 1998 Patna 53 Gaya Prasad Vs. Smt. Jamwanti Devi.
5. On the contrary, the learned counsel for the respondent relied upon two Division Bench decisions of this Court reported in A.I.R. 1983 Patna 132 Jaswant Singh Vs. Smt. Darshan Kaur and Ors. and 1992 (2) P.L.J.R. 858 Mostt. Pemlo Vs. Haralala Mehto and submitted that in money suit, only the counter claim can be made and in no other case.
6. In the case of Jag Mohan Chawla Vs. Dera Radha Swami Satsang A.I.R. 1996 (S.C.) 2222, the Apex Court has held that 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 get the same cause of action adjudicated without relegating the defendant to file a separate suit. In sub-Rule 1 Rule 6A, the language is so couched with words of wide width as to able the parties to bring his 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 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 -3-
had any nexus with the cause of action of the plaintiff. The Apex Court in the case of Guruwachan Singh Vs. Bhag Singh A.I.R. 1996 S.C. 1087 reiterated the same view.
7. In A.I.R. 1998 Patna 53 Gaya Prasad (Supra), this Court has considered both the decisions relied upon by the respondent herein and then in view of the decision of the Apex Court, the said Division Bench decisions were not followed. In this decision, this Court has followed the Apex Court decision and clearly held that in eviction suit, counter claim by the defendant can be made claiming title.
8. In view of the above settled principle of law laid down by the Apex Court followed by this Court, the learned Court below has wrongly observed that there must be some nexus between the claim of the plaintiff and the claim of the defendant in the counter claim. This view of the learned Court below is contrary to the view taken by the Apex Court as well as by this Court and, therefore, in my opinion, the Court below has not exercised a jurisdiction vested in it by law and the order passed by the Court below is contrary to settled law.
9. In view of the above discussion, in my opinion, the impugned order is unsustainable in the eye of law. Thus, this writ application is allowed and the impugned order is set aside. The counter claim made by the defendant shall be decided by the Court below in this very suit according to law. P Patna High Court, Patna (Mungeshwar Sahoo,J.) The 13thday of December, 2011
Sanjeev/N.A.F.R.
-4-
had any nexus with the cause of action of the plaintiff. The Apex Court in the case of Guruwachan Singh Vs. Bhag Singh A.I.R. 1996 S.C. 1087 reiterated the same view.
7. In A.I.R. 1998 Patna 53 Gaya Prasad (Supra), this Court has considered both the decisions relied upon by the respondent herein and then in view of the decision of the Apex Court, the said Division Bench decisions were not followed. In this decision, this Court has followed the Apex Court decision and clearly held that in eviction suit, counter claim by the defendant can be made claiming title.
8. In view of the above settled principle of law laid down by the Apex Court followed by this Court, the learned Court below has wrongly observed that there must be some nexus between the claim of the plaintiff and the claim of the defendant in the counter claim. This view of the learned Court below is contrary to the view taken by the Apex Court as well as by this Court and, therefore, in my opinion, the Court below has not exercised a jurisdiction vested in it by law and the order passed by the Court below is contrary to settled law.
Patna High Court - Orders
Sri Sanjeev Choudhary & Anr vs Smt.Sunita Choudhary & Anr on 13 December, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.18536 of 2011 Sri Sanjeev Choudhary & Anr
Versus
Smt.Sunita Choudhary & Anr
----------------------------------
ORDER
05. 13.12.2011.
1. I have heard the learned senior counsel, Mr.
Ramesh Kumar Chaudhary on behalf of the petitioner and the learned counsel, Mr. Chitragupta Prasad on behalf of the respondent.
2. By the impugned order dated 02.08.2011, the Subordinate Judge Xth Patna rejected the counter claim filed by the petitioner under Order 8 Rule 6A C.P.C. in eviction suit No.1 of 2004. The plaintiff-respondent filed title eviction suit No.1 of 2004 for eviction of the defendant-petitioner on the ground of default.
3. The defendant-petitioner filed written statement and counter affidavit claiming a relief of partition with regard to the suit property. According to the petitioner, he is the co-sharer of the subject matter of the eviction suit. The learned Court below rejected the counter claim on the ground that there is no nexus between the claim made by the plaintiff in the suit and claim set up by the defendant by way of counter claim.
4. The learned counsel for the petitioner submitted that the learned Court below has wrongly considered the provision of Orders 8 Rule 6A C.P.C. According to the learned counsel in eviction suit, counter claim can be made by the defendant claiming title and it is not necessary that there must be nexus between the claim of the plaintiff and the claim of the defendant -2-
in the counter claim. The learned counsel relied upon a decision of this Court reported in A.I.R. 1998 Patna 53 Gaya Prasad Vs. Smt. Jamwanti Devi.
5. On the contrary, the learned counsel for the respondent relied upon two Division Bench decisions of this Court reported in A.I.R. 1983 Patna 132 Jaswant Singh Vs. Smt. Darshan Kaur and Ors. and 1992 (2) P.L.J.R. 858 Mostt. Pemlo Vs. Haralala Mehto and submitted that in money suit, only the counter claim can be made and in no other case.
6. In the case of Jag Mohan Chawla Vs. Dera Radha Swami Satsang A.I.R. 1996 (S.C.) 2222, the Apex Court has held that 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 get the same cause of action adjudicated without relegating the defendant to file a separate suit. In sub-Rule 1 Rule 6A, the language is so couched with words of wide width as to able the parties to bring his 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 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 -3-
had any nexus with the cause of action of the plaintiff. The Apex Court in the case of Guruwachan Singh Vs. Bhag Singh A.I.R. 1996 S.C. 1087 reiterated the same view.
7. In A.I.R. 1998 Patna 53 Gaya Prasad (Supra), this Court has considered both the decisions relied upon by the respondent herein and then in view of the decision of the Apex Court, the said Division Bench decisions were not followed. In this decision, this Court has followed the Apex Court decision and clearly held that in eviction suit, counter claim by the defendant can be made claiming title.
8. In view of the above settled principle of law laid down by the Apex Court followed by this Court, the learned Court below has wrongly observed that there must be some nexus between the claim of the plaintiff and the claim of the defendant in the counter claim. This view of the learned Court below is contrary to the view taken by the Apex Court as well as by this Court and, therefore, in my opinion, the Court below has not exercised a jurisdiction vested in it by law and the order passed by the Court below is contrary to settled law.
9. In view of the above discussion, in my opinion, the impugned order is unsustainable in the eye of law. Thus, this writ application is allowed and the impugned order is set aside. The counter claim made by the defendant shall be decided by the Court below in this very suit according to law. P Patna High Court, Patna (Mungeshwar Sahoo,J.) The 13thday of December, 2011
Sanjeev/N.A.F.R.
-4-
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