While passing the order impugned, learned trial
Court has relied upon the judgment of the Apex Court in the
matter of Gurbachan Singh Vs. Bhag Singh reported in AIR
1996 SC 1087, so as to convey that Rule 6A(i) of Order 8 of
Civil Procedure Code debars filing of counter claim of valuation
which divest pecuniary jurisdiction of the Court before whom
the main suit is pending. So far as the above judgment is
concerned, learned Counsel for the petitioner has sought to
distinguish its applicability to the facts of the present case on
the ground that, in the case of Gurbachan Singh (supra) the
trial Court has proceeded with the suit and trial in the suit has
substantially progressed. As such, Supreme Court has taken
view adverse to the interest of petitioners. In my opinion, the
above referred contentions of the petitioner are liable to be
rejected in view of the observations made by Apex Court in
para No. 3 of the said Judgment which reads thus:-
“3.
It is true that Rule 6A(a) was introduced by
Amendment Act of 1976. Preceding the amendment, it
was settled law that except in a money claim, counter
claim or set off cannot be set up in other suits. The Law
Commission of India had recommended, to avoid
multiplicity of the proceedings, right to the defendants to
raise the plea of set off in addition to a counter claim in
Rule 6 in the same suit irrespective of the fact whether
the cause of action for counter claim or set off had
accrued to defendant either before or after the filing of
the suit. The limitation was that the counter claim or set
off must be pleaded by way of defence in the written
statement
before
the
defendant
filed
his
written
statement or before the time limit for delivering the
written statement has expired, whether such counter-
claim is in the nature of a claim for damages or not.
Further limitation was that the counter-claim should not
exceed the pecuniary limits of the jurisdiction of the
court. In other words, by laying the counter claim
pecuniary jurisdiction of the court cannot be divested and
the power to try the suit already entertained cannot be
taken away by accepting the counter claim beyond its
pecuniary jurisdiction. Thus considered, we hold that in a
suit for injunction, the counter-claim for possession also
could be entertained, by operation of Order 8 Rule 6 (A)
(1) of CPC.”
The Apex Court in clear terms has observed that in
view of proviso to Rule 6A of Order 8 of Civil Procedure Code,
if by filing counter claim, having valuation which oust the
jurisdiction of the Court from trying suit, then such counter
claim can not be accepted. In other words, a counter claim
beyond pecuniary jurisdiction of the Court can not be
entertained.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8219 OF 2014
Amit Balasaheb Takte,v Krishna Raosaheb Pawar,
CORAM : N.W. SAMBRE, J.
DATED : 19TH JANUARY, 2015
Citation; 2015(3) ALLMR 82
This petition is by defendants, questioning an order
passed under the provisions of Order 8 Rule 6A and 6C of the
Code of Civil Procedure, whereby the counter claim filed by the
ig
defendants in Regular Civil Suit No. 561 of 2014, which was
filed in accordance with the provisions of Section 38 of the
Specific Relief Act for perpetual injunction, was ordered to be
excluded with liberty to file fresh suit by the defendants-
petitioners.
2.
The few facts giving rise for filing the writ petition
are as under :-
.
Respondent No.1 to the present petition, claims to
have purchased the suit property which consists of plot and
building constructed thereon admeasuring 201.78 sq. meters
situated at Khdamba (Bk), Taluka Rahuri, District Ahmednagar.
3.
It is claimed by respondent No.1-plaintiff that vide
registered sale deed dated 25/02/2014, the suit property was
purchased by him from defendant No.3 for consideration of
Rs.36,00,000/- and after the same, his name came to be
mutated in the revenue record and also Grampanchayat
record.
4.
It appears that the above said sale transaction
preceded with some loan transaction by defendant No. 3 to the
said suit, who happened to be father of the petitioners i.e.
defendant Nos. 1 and 2 to the suit and as he was not in a
position to satisfy the said debt and was unable to manage the
property which was developed for the purpose of carrying hotel
business, came to be sold to the plaintiff.
5.
It is alleged that defendant Nos. 1 and 2 have
issued notice dated 03/05/2014 to Raosaheb Patwardhan
Credit Co-operative Society i.e. from whom their father-
defendant No. 3 has taken loan and copy of the said notice
was sent to the plaintiff-respondent No.1. The said notice was
duly replied on 19/05/2014, which was followed with another
notice by the defendants to the plaintiff on 06/06/2014.
Defendant Nos. 1 and 2 have obstructed the use and
enjoyment of the property by the plaintiff and he was unable to
start his hotel business and develop the property further, same
has prompted him to file the suit in question i.e. Regular Civil
6.
Suit No. 561 of 2014.
After suit summons were served on the defendants
to the suit, the defendants filed their appearance in common,
however on the next date, the defendants split up in one group
i.e. defendant Nos. 1 and 2 and submitted the counter claim
The nature of the counter claim submitted by the
7.
against the plaintiff and defendant No. 3 i.e. their father.
petitioners, who are defendant Nos. 1 and 2 and third party,
was for setting aside the sale deed dated 25/02/2014, for
partition, possession and declaration.
In the said counter
claim, it is claimed by present petitioners that Govind Gayaji
Takte was owner of the property in question, who expired on
09/01/1987. The property owned by the said Govind devolved
in partition amongst his sons and daughters. Defendant No. 3
to the original suit namely Balasaheb received the suit property
in the said partition alongwith other properties. It is further
claimed by the petitioners that defendant No. 3 has no authority
to transfer the suit property to original plaintiff and the said sale
was neither for legal necessity. As such, they have sought for
setting aside the registered sale deed dated 25/02/2014 and
sought partition of the said property alongwith other four
properties received by defendant No. 3 from Govind. In the
said counter claim, original defendant No.3 was added as
defendant No.1, original plaintiff as defendant No.2, the
management of Credit Co-operative society as defendant No.3
and Special Recovery Officer appointed by the State
Government as defendant No. 4. It will not be out of place to
mention here that defendant Nos. 3 and 4 are neither party to
the suit preferred by plaintiff-respondent No.1 to the present
petition. In the counter claim, a declaration is sought that the
suit property and other properties mentioned in Paragraph-25
of the counter claim be declared as the joint family property of
Hindu family and further sought partition of the said property
and also sought declaration that the sale deed dated
declared as illegal and not binding on the claimants in the
counter claim. In the counter claim, suit of the plaintiff was
sought to be rejected.
25/02/2014 bearing document Registration No.618/2014 be
8.
After filing of the counter claim, the plaintiff moved
an application Exhibit-29 claiming to be under the provisions of
Rule 6A, 6C, 13 and 19 of Order 8 of Civil Procedure Code
alleging therein that the counter claim be excluded. The cause
for seeking exclusion as is cited are as under :-
The suit properties are different,
b) the alleged loan transaction by defendant No. 3 is
a)
not an issue in the suit preferred by the plaintiff,
c) the partition dispute is amongst co-parceners,
d) in addition to setting aside the sale deed dated
25/02/2014, there are other various claims
the valuation in the counter claim
e)
made in the counter claim, and
ousted the jurisdiction of Civil Judge, Junior
Division as counter claim is valued at Rs.
36,17,750/-.
9.
The said application Exhibit-29 was objected by
present petitioners by filing their reply. The petitioners alleged
that the suit property since is ancestral property, the counter
claim is filed by all the legal heirs. It is further claimed by the
present petitioners that, they are in possession of the suit
property and they are not interested in prolonging the matter.
They have made allegation against their own father that without
disclosing the loan transaction to the present petitioners, their
father namely defendant No. 3 has transferred the property. It
is further claimed by them that the application is liable to be
10.
rejected.
Learned Court of 2nd Joint Civil Judge, Junior
Division, Rahuri, by an order dated 09/09/2014 ordered
exclusion of counter claim preferred by the present petitioner at
Exhibit-16 from the suit of respondent No. 1-plaintiff with liberty
to defendant Nos. 1 and 2 to file fresh suit about the subject
11.
matter of counter claim. As such, present writ petition.
Mr. Karpe, learned Counsel for the petitioners-
defendant Nos. 1 and 2 submits that, if the order impugned is
sustained, same will cause great prejudice to the present
petitioners, as according to him two separate proceedings will
be tried in relation to same suit property in two different Courts.
He further submits that it was always open for the Court of Civil
Judge, Junior Division, instead of entertaining suit proceedings
before him to transfer the suit as well as counter claim to the
competent Court's jurisdiction (Civil Judge, Senior Division) and
same is very much permissible in the Civil Manual and Civil
Procedure Code. He further submits that, if the suit alongwith
counter claim is transferred to the Civil Judge, Senior Division,
the said Court will have complete jurisdiction over the entire
claim raised in the suit and counter claim. According to him the
order impugned is not sustainable as it is not open for the
learned Court of Civil Judge, Senior Division to return the
counter claim.
12.
Mr. Gaware, learned Counsel for respondent No.
1, while resisting the contention raised by Mr. Karpe, learned
Counsel for the petitioners, has urged that the suit filed by his
client respondent-plaintiff is for simplicitor perpetual injunction.
He further submits that the claim raised in the counter claim
involves various issues, such as common nucleus, nature of
the suit property whether ancestral or self-acquired property,
validity of loan transaction, validity of sale deed in favour of the
plaintiff, and other issues. He submits that, the counter claim
as is required to be tried as a separate suit, according to him,
even parties to the counter claim are different. He submits that
in counter claim, in addition to defendant Nos. 1 and 2, one
more legal heir is impleaded as party claimant plaintiff and
parties have added their own father, who has transferred the
property to the plaintiff I. e. defendant No. 3 as defendant No.
1. According to him, in addition to the said fact, in counter claim
the plaintiff has impleaded defendant No. 3 and 4, who are
officials of the Credit Co-operative Society, from whom the loan
was obtained. He urged that, learned Court below has rightly
passed an order excluding the counter claim in view of
provisions of Rule 6A and 6C of Order 8 of Code of Civil
Procedure.
13.
Having given my thoughtful considerations to the
points raised by the respective Counsel, while assailing the
order dated 09/09/2014 passed by 2nd Joint Civil Judge, Junior
Division, Rahuri in Regular Civil Suit No. 561 of 2014 below
Exhibit-29, it is noted by me that the suit filed by respondent
No. 1-plaintiff is for simplicitor injunction based on his title
acquired by him by virtue of registered sale deed dated
25/02/2014. It is required to be noted that, claim put forth by
way of counter claim is in the light of the provisions of Order 8
of Civil Procedure Code by original defendant Nos. 1 and 2,
perhaps alongwith their sister, who is added as third party to
the counter claim. Same is for partition, separate possession,
declaration in relation to various properties mentioned in the
counter claim. However, the issue in relation to loan transaction
between defendant No. 3 to the suit and Credit Co-operative
society, sale deed executed by defendant No. 3 in favour of
plaintiff is also subject matter of the counter claim.
Having
regard to the nature of the claim raised in the counter claim,
same is valued at Rs. 36,17,750/-.
It is admitted position on record that, in view of
14.
pecuniary jurisdiction of the counter claim, the power to
entertain the said counter claim lies with Civil Judge, Senior
Division and the jurisdiction of Civil Judge, Junior Division is
The provisions of Rule 6A and 6C of Order 8 of
15.
ousted.
Civil Procedure Code reads thus:-
“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 damage
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
-11-
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.
Rule 6C. Exclusion of counter-claim
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 counter-claim 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.”
16.
It is required to be noted that, Rule 6A of Order 8
of Civil Procedure Code provides for filing of a counter claim by
defendant in the suit in relation to cause of action accruing to
the defendant against the plaintiff either before or after filing of
the suit, however, before defendants delivered their defence.
The rider is incorporated by Sub rule 1 of Rule 6A or Order 8 of
Civil Procedure Code that the counter claim shall not exceed
pecuniary limits of jurisdiction of the Court. In the present case,
the counter claim as admittedly exceeded pecuniary jurisdiction
of Civil Judge, Junior Division, so as to entertain counter claim.
Having regard to its value, the jurisdiction vests with the Civil
Judge, Senior Division. Rule 6C of Order 8 of Civil Procedure
Code provides that, after defendants set up a counter claim
and the plaintiff claims that said claim be not disposed of by
way of counter claim, but in an independent suit, it is open for
the plaintiff prior to settling the issues in relation to counter
claim apply to the Court for an order that such counter claim
may be excluded. Plain reading of Rule 6C of Order 8 of Civil
Procedure Code provides that same is with an intention to
facilitate the plaintiff that counter claim filed by defendants may
not be tried in his suit. Even though said is incorporated, so as
to facilitate the plaintiff, however, it is required to be noted that,
same can not be granted merely for asking by the plaintiff
unless the plaintiff establish case on legal grounds or any legal
infirmity as to why counter claim can not be tried with his suit.
17.
In the present case, the plaintiff in clear terms in
his application Exhibit-29 has come out with the case that, in
view of proviso to Sub-rule 1 of Rule 6A of Order 8 of Civil
Procedure Code, the counter claim exceeds pecuniary
The plaintiff has also come out with a case in the
suit.
jurisdiction of the Court, before whom the plaintiff has filed his
application that, the suit properties in the counter claim are
different, but for one property which was purchased by him by
the registered sale deed dated 25/02/2014.
The plaintiff in
addition to above, has brought to the notice of learned trial
Court that the counter claim be not decided with his suit and be
excluded as partition is claimed by the parties to the counter
claim and in the counter claim three new parties are added i. e.
legal heir of original defendant No. 3, defendant Nos. 3 and 4 i.
e. Bankers. It is brought to the notice of the Court that, the
pecuniary jurisdiction of Civil Judge, Senior Division, before
whom the suit was filed, does not permit him to entertain
counter claim. It is also claimed that, there are certain other
issues qua loan transaction etc. raised in the counter claim.
18.
Having regard to the above referred issues,
learned trial Judge has proceeded to pass an order, ordering
exclusion of the counter claim. The exclusion of counter claim,
though in my opinion, was right step taken in the light of
proviso to Sub rule 1 of Rule 6A and 6C of Order 8 of Civil
Procedure Code.
While passing the order impugned, learned trial
19.
Court has relied upon the judgment of the Apex Court in the
matter of Gurbachan Singh Vs. Bhag Singh reported in AIR
1996 SC 1087, so as to convey that Rule 6A(i) of Order 8 of
Civil Procedure Code debars filing of counter claim of valuation
which divest pecuniary jurisdiction of the Court before whom
the main suit is pending. So far as the above judgment is
concerned, learned Counsel for the petitioner has sought to
distinguish its applicability to the facts of the present case on
the ground that, in the case of Gurbachan Singh (supra) the
trial Court has proceeded with the suit and trial in the suit has
substantially progressed. As such, Supreme Court has taken
view adverse to the interest of petitioners. In my opinion, the
above referred contentions of the petitioner are liable to be
rejected in view of the observations made by Apex Court in
para No. 3 of the said Judgment which reads thus:-
“3.
It is true that Rule 6A(a) was introduced by
Amendment Act of 1976. Preceding the amendment, it
was settled law that except in a money claim, counter
claim or set off cannot be set up in other suits. The Law
Commission of India had recommended, to avoid
multiplicity of the proceedings, right to the defendants to
raise the plea of set off in addition to a counter claim in
Rule 6 in the same suit irrespective of the fact whether
the cause of action for counter claim or set off had
accrued to defendant either before or after the filing of
the suit. The limitation was that the counter claim or set
off must be pleaded by way of defence in the written
statement
before
the
defendant
filed
his
written
statement or before the time limit for delivering the
written statement has expired, whether such counter-
claim is in the nature of a claim for damages or not.
Further limitation was that the counter-claim should not
exceed the pecuniary limits of the jurisdiction of the
court. In other words, by laying the counter claim
pecuniary jurisdiction of the court cannot be divested and
the power to try the suit already entertained cannot be
taken away by accepting the counter claim beyond its
pecuniary jurisdiction. Thus considered, we hold that in a
suit for injunction, the counter-claim for possession also
could be entertained, by operation of Order 8 Rule 6 (A)
(1) of CPC.”
20.
The Apex Court in clear terms has observed that in
view of proviso to Rule 6A of Order 8 of Civil Procedure Code,
if by filing counter claim, having valuation which oust the
jurisdiction of the Court from trying suit, then such counter
claim can not be accepted. In other words, a counter claim
beyond pecuniary jurisdiction of the Court can not be
entertained.
21.
The next contention of the learned Counsel for the
Vaijinath
Deshpande
Vs.
Rajesh
Anandrao
Sanjay
petitioner that, law laid down by this Court in the matter of
Deshapnde reported in 2008(2) Bom. C.R. 399, squarely
applies to the present case and according to him, the counter
claim is very much maintainable is concerned, the perusal of
the said judgment reflects that in paragraph No. 4 the Court
consider the challenge raised to the impugned order on the
ought
not
to
be
transferred
by
District
Judge
suit
ground that, when the question of jurisdiction was involved, the
administratively to the Court of Civil Judge, Senior Division,
who has pecuniary jurisdiction. The High Court has also
considered provisions of Section 22 to 24 of Civil Procedure
Code and clause 233 of Civil Manual and in the light of same,
District Judge ordered transferring the matter by administrative
order to the Court of Civil Judge, Senior Division when as per
the contention of the parties, the proper course for Court of
Civil Judge, Junior Division was to dismiss the claim as it was
exceeding pecuniary jurisdiction of the said Court.
22.
The High Court in the said judgment, having
regard to the provision of chapter IX, clause 233 of the Civil
Manual has observed that, the District Judge was within its
power to transfer the matter administratively to the Court of
Junior Division has no pecuniary jurisdiction.
Civil Judge, Senior Division, on the ground that, Civil Judge,
23.
Mr. Karpe, learned Counsel for the petitioner has
also placed the reliance upon the judgment of the Apex Court
in the matter of Jag Mohan Chawla Vs. Dera Radha Swami
Satsang reported in AIR 1996 SC 2222, so as to canvass that
defendant can claim any right by way of counter claim in
respect of any cause of action that had accrued to him, even
though it was independent cause of action averred by the
plaintiff and had same cause of action adjudicated without
relegating defendant to file a separate suit. The Apex Court,
while dealing with the said issue, has noted in paragraph No. 5
thus :-
“5.
The question, therefore is: whether in a suit for
injunction, counter-claim for injunction in respect of the
same or a different property is maintainable? Whether
counter-claim can be made on different cause of action?
it is true that preceding PC Amendment Act, 1976, Rule 6
of Order 8 limited the remedy to set off or counter-claim
laid in a written statement only in a money suit. By CPC
Amendment Act, 1976, Rules 6A to 6G were brought on
statute. Rule 6a(1) provides that 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 damage
or not. A limitation put in entertaining the counter-claim is
as provided in the proviso to sub-rule (1), namely, the
counter-claim shall not exceed the pecuniary limits of the
jurisdiction of the Court. Sub-rule (2) amplified that 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. The plaintiff shall be given liberty to file a
written statement to answer the counter-claim of the
defendant within such period as may be fixed by the
Court. The counter-claim is directed to be treated, by
operation of sub-rule (4) thereof, as a plaint governed by
the rules of the pleadings of the plaint. Even before 1976
Act was brought on statute, this Court in Laxmidas
Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala &
Ors. [(1964) 2 SCR 567], had come to consider the case
of suit and cross suit by way of counter-claim. Therein,
suit was filed for enforcement of an agreement to the
effect that partnership between the parties had been
dissolved and the partners had arrived at a specific
amount to be paid to the appellant in full satisfaction of
the share of one of the partners in the partnership and
thereby decree for settlement of accounts was sought.
Therein the legal representatives of the deceased
partner contended in the written statement, not only
denying the settlement of accounts but also made a
counter-claim in the written statement for the rendition of
accounts against the appellant and paid the court fee as
plaint. They also sought a prayer to treat the counter-
claim as a cross suit. The trial Court dismissed the suit
and the counter-claim. On appeal, the learned Single
Judge accepted the counter-claim on a plaint in a cross
suit and remitted the suit for trial in accordance with law.
On appeal, per majority, this Court had accepted the
respondents' plea in the written statement to be a
counter- claim for settlement of their claim and defence
in written statement as a cross suit. The counter-claim
could be treated as a cross suit and it could be decided
in the same suit without relegating the parties to a fresh
suit. It is true that in money suits, decree must be
conformable to Order 20, Rule 18, CPC but the object of
the amendments introduced by Rules 6A to 6G are
conferment of a statutory right on the defendant to set up
a counter-claim independent of the claim on the basis of
which the plaintiff laid the suit, on his own cause of
action. In sub-rule (1) of Rule 6A, the language is so
couched with words of wide width as to enable the
parties to bring his own 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 of the same nature as
original action of the plaintiff. It need not relate to 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
have any nexus with the cause of action of the plaintiff
that occasioned to lay the suit. The only limitation is that
the cause of action should arise before the time fixed for
filing the written statement expires. The defendant may
set up a cause of action which has accrued to him even
after the institution of the suit. The counter-claim
expressly is treated as a cross suit with all the indicia of
pleadings as a plaint including the duty to aver his cause
of action and also payment of the requisite court fee
thereon. Instead of relegating the defendant to an
independent suit, to avert multiplicity of the proceeding
and needles protection, the legislature intended to try
both the suit and the counter- claim in the same suit as
suit and cross suit and have them disposed of in the
same trial. In other words, a defendant can claim any
right by way of a counter-claim in the same suit as suit
and cross suit and have them disposed of in the same
trial. In other words, 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 have the
same cause of action adjudicated without relegating the
defendant to file a separate suit. Acceptance of the
contention of the appellant tends to defeat the purpose of
amendment. Opportunity also has been provided under
Rule 6-C to seek deletion of the counter-claim. It is seen
that the trial Court had not found it necessary to delete
the counter- claim. The High Court directed to examine
the identity of the property. Even otherwise, it being an
independent cause of action, though the identity of the
property may be different, there arises no illegality
warranting dismissal of counter-claim. Nonetheless, in
the same suit, both the claim in the suit and the counter-
claim could be tried and decided and disposed of in the
same suit. In Mahendra Kumar & Anr. v. State of Madhya
Pradesh & Ors. [(1987) c SCC 265] where a Bench of
two Judges of this Court was to consider the controversy,
held that since the cause of action for the counter-claim
had arisen before filing of the written statement, the
counter-claim was maintainable. The question therein
was of limitation with which we are not concerned in this
case. Thus considered we find that there is no merit in
the appeal.”
From the above observations made by the Apex
24.
Court as are reproduced herein above, the Apex Court, in the
light of amended provisions of Order 8 Rule 6, whereby Rule
6A to 6G of Code of Civil Procedure were incorporated, has
noted the limitation imposed which entertaining the counter
claim; as provided in sub rule (1) namely the counter claim
shall not exceed the pecuniary limits of the jurisdiction of the
Court. The Apex Court also considered that the effect of the
counter claim to be that of cross suit which enables the trial
Court to pronounce the final judgment in the same suit,
both on the original claim and the counter claim.
Sub
rule (4) of the said Rules contemplates the treating of the
counter claim
as
plaint,
which governed by
the
rules
of the pleadings. The Apex Court has further noted that the
object of amendment introduced by Rules 6A to 6G are
conferment of a statutory right on the defendant to set up a
counter claim independent of the claim on the basis of which
the plaintiff has initiated the suit, on the cause of action therein.
As such, according to the Apex Court, the counter claim, no
longer can be confined to money claim or cause of action of the
same nature as originally brought into action by the plaintiff.
The Apex Court also clarified that it need not be related or to be
connected with the original cause of action pleaded by the
plaintiff.
However, the rider provided as regards ousting of
pecuniary jurisdiction of the Court trying the suit as per
Sub-rule (1) of Rule 6A of Order 8 of Civil Procedure Code can
not be given go-bye.
The observations made by the Apex
Court in the case of Jag Mohan Chawla (supra) and that of
Gurbachan Singh (supra) takes this Court to the only
conclusion that such counter claim, which oust the jurisdiction
of the trial Court, who was trying the suit, is not tenable.
25.
In that view of the matter, the contentions raised by
Mr. Karpe that both suit and counter claim should be
transferred to the Court of Civil Judge, Senior Division and
order to that effect passed by learned Court of Civil Judge,
Junior Division is fallacious and does not call for any
interference.
26.
In that view of the matter, no material illegality or
irregularity is noticed in the order impugned, which calls for no
interference in the extra-ordinary jurisdiction of this Court. As
27.
such, writ petition fails, same stands dismissed.
Initially, this Court has pronounced the operative
order, to which learned Counsel for the petitioners sought stay
for the period of four weeks. The request was opposed by the
learned Counsel for the respondents.
28.
Having regard to the issue raised before this Court
for consideration and the fact that the counter claim was
ordered to be returned, it will be appropriate that, further
proceedings in the suit shall remain stayed for the period of
four weeks from today.
Sd/-
[ N.W. SAMBRE, J. ]
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