In this case, the petitioners wanted to implead Basheer
son of the plaintiffs to whom the plaintiffs have released their
rights in the immovable property inherited by them as legal heir
of late Usman as contended by them in the plaint as well as in
their replication and as also the second petitioner herein as
supplemental defendants in the suit and also appoint the first
petitioner as guardian of the second petitioner. The right to
implead in the suit is always on the plaintiffs as they are the
masters of the suit. If a third party wanted to come on record by
himself, then he can file an application to implead himself in the
suit and if the court is satisfied that he can be impleaded and his
presence is required for proper adjudication of the case, then the
court can allow the third party to be impleaded in the suit. But
the defendant had no right to get any third party to be impleaded
in the plaint. If the defendant wants to implead any party whom
he or she feels required for proper adjudication of the counter
claim between the plaintiffs and the defendant, raised by the
defendant in the written statement, then such party can be
impleaded as additional defendant in the counter claim and not in
the suit.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
30TH DAY OF SEPTEMBER 2016
OP(C).No. 2866 of 2014 (O)
PULIKKIPOYIL SALSAMATH USMAN Vs PULIKKIPOYIL MOIDEEN KUNHI
The defendant and her minor daughter in O.S.475/2011 on
the file of the 3rd Additional Sub Court, Kozhikode have filed this
petition challenging Ext.P7 and P8 orders passed by the court below
under Article 227 of the Constitution of India.
2. Respondents 1 and 2 herein filed Ext.P1 suit as
O.S.475/2011 on the file of the 3rd Additional Sub Court for
recovery of an amount of 12,28,099/- from the defendant, who is
`
the first petitioner here. It is alleged in the petition that the first
petitioner herein is the widow of their deceased son Usman @
Mujeeb. Apart from the plaintiffs and the defendant in the suit, as
per muslim law his children Shana Sherin and Shamna Thasnim are
the legal heirs of the deceased Usman. Out of the female children of
Usman, Shana Sherim died on 13.10.2008 and as per muslim law,
her estate will devolve on the first plaintiff and the defendant and
her sister Shamna Thasnim as her legal heirs. The first plaintiff is
entitled to get 68/243 share, 2nd plaintiff is entitled to get 36/243
share and the remaining shares will devolve on the defendant and
her daughter Shamna Thasnim. The plaintiffs have released their
right in the immovable properties which they inherited on the death
of Usman in favour of their son Basheer. The defendant and her
daughter are the co-owners of that property. Usman had taken a
policy with life insurance corporation and bajaj alliance and he had
shown his wife namely the defendant as his nominee. On the death
of Usman, the defendant had collected the amounts with the
consent of the plaintiffs and she had collected `21,20,808/- from life
insurance corporation and `8,16,000/-
from Bajaj Alliance
insurance. But she had not paid the share due to the plaintiffs.
Though they have sent a notice demanding the amount, she had
sent a reply with false allegations. The plaintiffs are jointly entitled
to get 12,56,905/- being their share of 104/243 in the amount,
`
which the defendant is liable to pay. Since she did not pay the
amount, the present suit has been filed by the plaintiffs for
realisation of the amount.
3. The defendant who is the first petitioner herein filed
Ext.P2 written statement admitting the relationship and also
devolution of right on the death of her husband Usman @ Mujeeb
and also receipt of the amount due under the policies in the name of
Usman from life insurance corporation as well as Bajaj Alliance
insurance, but submitted that the amount claimed is not correct.
Certain amounts have been spent for the purpose of discharging the
liability of deceased Usman @ Mujeeb. She had also raised a
counter claim for partition of counter claim A schedule properties,
which belonged to her late husband Usman @ Mujeeb and also
claimed set off in respect of the amount used by her from the
amount due to Usman @ Mujeeb for discharge of his liabilities. The
respondents filed Ext.P9 replication to the counter claim which was
produced along with I.A.1132/16 by the petitioners wherein they
have stated that the immovable property need not be included in
the suit and they have released their undivided share in the counter
claim A schedule property in favour of their son Basheer, who is a
necessary party to the proceedings. They have also denied that
deceased had any liabilities which the counter claim plaintiff had
discharged and they have no liability to contribute anything to the
same. Further the valuation shown is not proper and the court fee
paid is also not correct. On the basis of the replications, plaintiff
filed I.A.937/13 to implead her daughter Shamna Nasnim, minor
represented by the first petitioner and Pulickapoyil Basheer as
additional defendants 2 and 3 in the suit and also filed I.A.938/2013
to appoint the defendant who is the first petitioner herein as the
guardian of the proposed 2nd defendant, who is a minor. The
respondent filed counter to the same stating that in their suit 3rd
parties cannot be impleaded and they prayed for dismissal of the
applications. The court below had by impugned Ext.P7 and P8
orders dismissed those application. Aggrieved by the same, the
present petition has been filed by the petitioners, who are the
petitioners in those applications before the court below.
4. Heard Sri. S. Kannan, counsel representing Sri. Firoz K.M,
counsel for the petitioners and Sri.V.V. Surendran, counsel
appearing for the respondents.
5. Learned counsel appearing for the petitioners submitted
that the court below was not justified in dismissing the
application for impleading additional defendants and also for
appointing the first petitioner as guardian of the second petitioner in
the counter claim. The court below had not understood the
principles behind filing of counter claim. If there are other cause
of action which arose for the defendant against the plaintiffs, the
defendant can raise a counter claim against the plaintiffs. It
need not necessarily be on the basis of the same cause of action on
which the plaintiffs had laid the claim against the defendant. It is
also not necessary that counter claim can be made only in
respect of money claim and not in respect of other subject
matter as well. The intention behind raising counter claim is to
avoid multiplicity of suits between the same parties. If at all the
court below felt that they cannot be impleaded as defendants in
the plaint, they can be permitted to be impleaded as defendants in
the counter claim as counter claim is also to be treated as plaint
for the purpose of considering the question involved in the counter
claim between the parties. He had relied on the decision reported
in Sarojini Amma v. Dakshayani Amma (1996 (2) KLT 74),
Sukhalal v. Munsiff, Cherthala (1997(1) KLT 247), P.V. George
v. Bank of Madurai Ltd (1986 KLT 406) and Chellappan v.
Krishnankutty (2001 (3) KLT 403) in support of his case.
6. On the other hand, learned counsel for the respondents
submitted that the suit is one filed for recovery of certain amount
from the defendants, who received the same from the insurance
company in which the plaintiffs are also having right and it is only
to realize their share that the present suit has been filed. So the
claim in respect of partition of immovable properties cannot be
treated as counter claim. So according to their counsel, the court
below was perfectly justified in dismissing the application for
impleading and also for appointment of guardian on the ground that
they cannot be impleaded in the suit filed by the plaintiffs.
7. It is an admitted fact that the respondents are the parents
of deceased Usman @ Mujeeb and the petitioners herein are the
widow and child of deceased Usman @ Mujeeb. It is also an
admitted fact that late Usman @ Mujeeb had taken life insurance
policy from the Life Insurance Corporation of India and also from
Bajaj Alliance Insurance showing his wife, the first petitioner
herein, as the nominee. It is also an admitted fact that he was also
having immovable property. It is an admitted fact that as a
nominee, the first petitioner had withdrawn the amount due
under the policies from the Life Insurance Corporation and Bajaj
Alliance Insurance and plaintiffs/respondents herein who are
parents of deceased Usman had filed the above suit for recovery
of their share from the amount due under the policies on the death
of their son Usman @ Mujeeb. Though the suit was filed as a
recovery of their share, virtually it is a suit for partition and
realistion of their share in the amount received by the first
petitioner herein as a nominee of the deceased husband. So the
counter claim filed by the defendants for partition of the immovable
properties belonging to deceased Usman @ Mujeeb as a counter
claim cannot be said to be a different cause of action or subject
matter which cannot be raised as a counter claim in the same suit.
8. Order 8 Rule 6A to G of Code of Civil Procedure deal with
counter claim and the procedure for dealing with the same which
reads as follows:
"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 excded 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.
6B.Counter-claim to be stated:- Where any
defendant seeks to rely upon any ground as supporting a
right of counter-claim, he shall, in his written statement, state
specifically that he does so by way of counter-claim.
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.
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.
6E. Default of plaintiff to reply to counter-claim:- If
the plaintiff makes default in putting in a reply to the
counter-claim made by the defendant, the Court may
pronounce judgment against the plaintiff in relation to the
counter-claim mad against him, or make such order in relation
to the counter-claim as it thinks fit.
6F. Relief to defendant where counter-claim
succeeds:- Where in any suit a set-off or counter -claim is
established as a defence against the plaintiff's claim, and any
balance is found due to the plaintiff or the defendant, as the
case may be, the Court may give judgment to the party
entitled to such balance.
6G. Rules relating to written statement to apply:-
The rules relating to a written statement by a defendant shall
apply to a written statement filed in answer to a counter-claim"
9. In the decision reported in Pathrose Samual v.
Karumban Parameswaran (AIR 1988 Ker. 163) this court has
held that:
"There is definitely some difference between 'set off' and 'counter
claim'. Set off is also in a sense a counter claim against the
plaintiff, but in essence it is a form of defence in which the
defendant while acknowledging the justice of the plainiff's claim
sets up a demand of his own to counter balance it either wholly
or in part. Counter claim is substantially a cross suit. It is really
a weapon of offence and enables the defendant to enforce a claim
against the plaintiff as effectively as an independent action. It
need not be an action of the same nature as the original action or
even analogous thereto even though the claim has to be one
entertainable by the court. According to the dictionary meaning
it is a claim made to offset another claim especially in law whereas
set off is something that counter balances or makes up for
something else. The proposition that a counter claim can be made
only in a suit for money cannot be accepted. There is nothing in
R.6A limiting such claims to money suits in order to contend that
whatever could be claimed is only the excess amount due to the
defendant after setting off what is due to plaintiff under R.6. The
words "in addition to his right of pleading a set off under R.6"
appearing in R.6A are not capable of making such a restriction"
10. In the decision reported in Raman Sukumaran v.
Velayudhan Madhayan (AIR 1982 Ker. 253) it has been held that:
"Rule 6A contemplates counter claim in any suit. The scheme
of the new rule is to permit the defendants to set up counterclaims,
which arise between the parties and which are cognizable by the
Court where the suit is pending. The object appears to be to
reduce pendency of cases so that cause of action and cross claim
similar in nature could be clubbed together and disposed of by a
common judgment".
11. In the decision reported in Gaya Prasad v. Smt.
Jamwanti Devi (AIR 1998 Patna 53) it has been held that:
"Rule 6A of O.8 was introduced by amendment of 1976 and
the very purpose of introducing this new rule on the
recommendation of the Law Commission of India was to avoid
multiplicity of the proceedings inasmuch as ignoring the frame of suit
and giving right to the defendant to raise not only the plea of set off
but also counter claim by setting up rights to himself irrespective of
the fact whether the cause of action for counter claim had accrued
afterwords of the filing of the suit. From the wordings and plain
reading of Rule 6A of Order VIII it is clear that it contemplates
counter claim with respect to any suit without having any restriction.
Order XX, Rule 19(1) cannot restrict harmonious reading of Order
VIII, Rule 6A rather if it is restricted in that sense then the whole
purpose of introduction of new Rules 6A to 6G would be
frustrated."
In that case the Patna High Court has held in a suit for eviction
the defendant is entitled to set up a claim for title in himself as
counter claim and such a counter claim is maintainable.
12. In the decision reported in Mohinder Singh Jaggi v.
Data Ram Jagannath (AIR 1972 SC 1048) it has been held that:
"Where in a suit for recovery of certain amount on the basis of
Khata, the defendant by his additional written statement puts
forward a counter claim for accounting arising out of transactions
between him and the plaintiff on the basis of an agreement and
the Supreme Court has held that the written statement can be
treated as a cross claim."
13. In the decision reported in Manikchand Fulchand
Katariya v. Lalchand Harakchand Katariya (AIR 1994 Bom.196)
it has been held that "counter claim is not limited to money suit
alone. In a suit for ownership and possession when the defendants
sets up title and possession in himself, decree granting possession
of suit premises in favour of the defendant passed on the basis of
the counter claim is perfectly justifiable.'
14. In the decision reported in Jag Mohan Chawla v. Dera
Radha Swami, Satsang and others (AIR 1996 SC 2222) it has
been held that:
"In a suit for injunction, counter claim for injunction in respect of
the same or a different property is maintainable. 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. 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 on 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".
15. In the decision reported in Rohit Singh and others v.
State of Bihar (now State of Jharkand) (AIR 2007 SC 10), it has
been held that "counter claim cannot be be raised after framing of
issues and counter claim directed solely against co-defendants
cannot be maintained. The court cannot proceed and grant decree
in favour of said co defendant only on the basis that no answer
has been filed to their counter claim by other defendants".
16. In the decision reported in Gurbachan Singh v. Bhag
Singh and others (AIR 1996 SC 1087) it has been held that "in a
suit for injunction, the claim for possession by defendant also can
be entertained by virtue of Order 8 Rule 6(A)(1) of Code of Civil
Procedure.
17. In the decision reported in Bollepanda P. Poonacha v.
K.M. Madapa (2008 (13) SCC 179) it has been held that "a counter
claim has been made on the basis of subsequent trespass by the
plaintiff cannot be entertained as cause of action for filing the
counter claim cannot be said to have arisen prior to the filing of
the written statement".
18. In the decision reported in Ramesh Chand Ardawatiya
v. Anil Panjwani (AIR 2003 SC 2508) it has been held that "right
to file counter claim runs with right of filing written statement. If
no written statement is filed, no counter claim can be
entertained."
19. In the decision reported in Rohit Singh and others v.
State of Bihar (now state of Jharkhand) and others (2006
(12) SCC 734) it has been held that in order to maintain a counter
claim, it has be directed against the plaintiff though incidentally or
along with it, it may also claim relief against co defendant.
20. In the decision reported in Vijay Prakash Jarath v. Tej
Prakash Jarath (2016 (6) SCJ 8) it has been held that "cause of
action in respect of which a counter claim can be filed, should
accrue before the defendant has delivered his defence and not
thereafter".
21. So it is clear from the above dictums that counter claim
need not be restricted to the cause of action on the basis of which
the plaintiffs had raised the claim and it can be a different
cause of action and not even having nexus with the cause of action
raised by the plaintiffs but it should be between the same parties
and that had accrued to the defendants prior to the filing of the
written statement or deliver his defence or right to deliver his
defence expires. It need not necessarily be in respect of the same
subject matter as well but counter claim can be entertained only
against the plaintiffs and it cannot be claimed only against co
defendants alone but if it was directed against the plaintiff
incidentally relief can be claimed in respect of co defendants as well
and in such cases counter claim is maintainable as against the
plaintiffs as well as co defendants. It is also settled law that
counter claim cannot be raised after issues are framed and after
the defence is delivered by the defendants.
22. The question as to whether a third party can be
impleaded in order to consider the question on counter claim has
been considered by this court in the decision reported in Sarojini
Amma's case (cited supra) where it has been held that:
"Counter claim not necessarily confined to claim made
against the plaintiff. Addition of other interested parties cannot be
said to be in contravention of Rule 6A if the court is satisfied
that without them the adjudication will be incomplete". Further in
the same decision it has been held that the additional parties can
be impleaded in the counter claim as additional defendants if they
are also necessary parties to effectively adjudicate the matter as
the counter claim is treated as plaint in the cross suit".
23. In the decision reported in Sukhalal's case (cited
supra) this court has held that:
"Order 8 Rule 6A does not require counter claim to be in the
written statement itself. It should be before the expiry of time for
delivering his defence. There is no requirement in the said rule that the
counter claim should form part of the written statement".
24. It is also held in the same decision that:
"The counter claim need not be connected with the original
cause of action/matter pleaded by plaintiff. The words "any right of
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."
25. In the decision reported in P.V. George's case (cited
supra), it has been held that "Impleading at the instance of the
defendant can be done if found that such impleadment is
necessary for effective adjudication."
26. In the decision reported in Chellappan's case (cited
supra) it has been held that "it is proper to implead a person who
has direct interest in property as additional defendant so as to
avoid multiplicity of suits. The interest should be direct, legal and
not commercial." In that decision this court has relied on the
dictum laid down in Vishnu Naboothiri v. Sankara Pillai (1968 KLT
692) where Justice Krishna Iyer as he then was quoted the
following passage from Mulla's C.P.C. Vol.1 which reads as
follows:
"The test is not whether the joinder of the person proposed to
be added as a defendant would be according to or against the
wishes of the plaintiff or whether the joinder would involve an
investigation into a question not arising on the cause of action averred
by the plaintiff. It is whether the relief claimed by the plaintiff will
directly affect the intervener in the enjoyment of his rights. It is not
enough that the plaintiff's right, and rights which the person desiring
to be made a defendant wishes to assert should be connected with
the same subject matter. The intervenor must be directly and legally
interested in the answers to the questions involved in the case. A
person is legally interested in the answer only if he can say that it may
lead to a result that will affect him legally that is by curtailing his
legal rights."
27. It is clear from the above dictums that, a third party
can be impleaded to consider the question of counter claim, if
the court is of the opinion that their presence is required for
proper adjudication of the counter claim between the counter claim
plaintiffs and the counter claim defendant. Further in the decision
reported in Sarojini Amma's case (cited supra), the question
arose when certain parties were impleaded as respondents in the
counter claim, the validity of the same was challenged and this
court has held that in order to determine the counter claim between
the parties if the presence of non party to the plaint is also required,
then they can be impleaded as defendants in the counter claim
though defendants are not entitled to implead them as additional
defendants in the plaint.
28. In this case, the petitioners wanted to implead Basheer
son of the plaintiffs to whom the plaintiffs have released their
rights in the immovable property inherited by them as legal heir
of late Usman as contended by them in the plaint as well as in
their replication and as also the second petitioner herein as
supplemental defendants in the suit and also appoint the first
petitioner as guardian of the second petitioner. The right to
implead in the suit is always on the plaintiffs as they are the
masters of the suit. If a third party wanted to come on record by
himself, then he can file an application to implead himself in the
suit and if the court is satisfied that he can be impleaded and his
presence is required for proper adjudication of the case, then the
court can allow the third party to be impleaded in the suit. But
the defendant had no right to get any third party to be impleaded
in the plaint. If the defendant wants to implead any party whom
he or she feels required for proper adjudication of the counter
claim between the plaintiffs and the defendant, raised by the
defendant in the written statement, then such party can be
impleaded as additional defendant in the counter claim and not in
the suit. So under such circumstances, though the court below
had come to a conclusion that no third party can be impleaded
which appears to be not correct, but the ultimate result of the
petition dismissing the same is right because the defendant is not
entitled to implead any third party as additional defendants in the
suit but if they want, they can file an application to implead them
as additional defendants in their counter claim. So under such
circumstances, this court is of the view that dismissal of the
application by the court below is not sustainable for the reasons
stated in the order, but the same is found to be justifiable for
the reasons mentioned above. If the petitioners file an
application to impead a party whom they want to implead for
proper adjudication of the counter claim in the counter claim as
additional defendants, the court below is directed to consider the
same and pass appropriate orders in that application taking into
consideration the principle on this aspect discussed by the court in
the judgment. Further whether the counter claim will have to be
proceeded along with the suit claim or it will have to be relegated
to a separate suit as contemplated under Order 8 Rule 6(c) of
the Code can also be considered by the court when such a
contention has been raised by the counter claim defendants who
are the plaintiffs in the suit as required to be decided under that
provision in accordance with law.
So under such circumstances, this court feels that there is
no necessity to interfere with the order passed by the court below
invoking the power under Article 227 of the Constitution of India,
but leaving liberty for the petitioners to file an application to
implead them as additional defendants in the counter claim
raised by the defendant in the written statement and subject to
consideration of the contention to be raised under Order 8 Rule 6(c)
of the Code by the counter claim defendants, this petition is
disposed of.
With the above directions and observations this petition is
disposed of. Registry is directed to communicate a copy of this
judgment to the court below at the earliest.
K. RAMAKRISHNAN, JUDGE.
Print Page
son of the plaintiffs to whom the plaintiffs have released their
rights in the immovable property inherited by them as legal heir
of late Usman as contended by them in the plaint as well as in
their replication and as also the second petitioner herein as
supplemental defendants in the suit and also appoint the first
petitioner as guardian of the second petitioner. The right to
implead in the suit is always on the plaintiffs as they are the
masters of the suit. If a third party wanted to come on record by
himself, then he can file an application to implead himself in the
suit and if the court is satisfied that he can be impleaded and his
presence is required for proper adjudication of the case, then the
court can allow the third party to be impleaded in the suit. But
the defendant had no right to get any third party to be impleaded
in the plaint. If the defendant wants to implead any party whom
he or she feels required for proper adjudication of the counter
claim between the plaintiffs and the defendant, raised by the
defendant in the written statement, then such party can be
impleaded as additional defendant in the counter claim and not in
the suit.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
30TH DAY OF SEPTEMBER 2016
OP(C).No. 2866 of 2014 (O)
PULIKKIPOYIL SALSAMATH USMAN Vs PULIKKIPOYIL MOIDEEN KUNHI
The defendant and her minor daughter in O.S.475/2011 on
the file of the 3rd Additional Sub Court, Kozhikode have filed this
petition challenging Ext.P7 and P8 orders passed by the court below
under Article 227 of the Constitution of India.
2. Respondents 1 and 2 herein filed Ext.P1 suit as
O.S.475/2011 on the file of the 3rd Additional Sub Court for
recovery of an amount of 12,28,099/- from the defendant, who is
`
the first petitioner here. It is alleged in the petition that the first
petitioner herein is the widow of their deceased son Usman @
Mujeeb. Apart from the plaintiffs and the defendant in the suit, as
per muslim law his children Shana Sherin and Shamna Thasnim are
the legal heirs of the deceased Usman. Out of the female children of
Usman, Shana Sherim died on 13.10.2008 and as per muslim law,
her estate will devolve on the first plaintiff and the defendant and
her sister Shamna Thasnim as her legal heirs. The first plaintiff is
entitled to get 68/243 share, 2nd plaintiff is entitled to get 36/243
share and the remaining shares will devolve on the defendant and
her daughter Shamna Thasnim. The plaintiffs have released their
right in the immovable properties which they inherited on the death
of Usman in favour of their son Basheer. The defendant and her
daughter are the co-owners of that property. Usman had taken a
policy with life insurance corporation and bajaj alliance and he had
shown his wife namely the defendant as his nominee. On the death
of Usman, the defendant had collected the amounts with the
consent of the plaintiffs and she had collected `21,20,808/- from life
insurance corporation and `8,16,000/-
from Bajaj Alliance
insurance. But she had not paid the share due to the plaintiffs.
Though they have sent a notice demanding the amount, she had
sent a reply with false allegations. The plaintiffs are jointly entitled
to get 12,56,905/- being their share of 104/243 in the amount,
`
which the defendant is liable to pay. Since she did not pay the
amount, the present suit has been filed by the plaintiffs for
realisation of the amount.
3. The defendant who is the first petitioner herein filed
Ext.P2 written statement admitting the relationship and also
devolution of right on the death of her husband Usman @ Mujeeb
and also receipt of the amount due under the policies in the name of
Usman from life insurance corporation as well as Bajaj Alliance
insurance, but submitted that the amount claimed is not correct.
Certain amounts have been spent for the purpose of discharging the
liability of deceased Usman @ Mujeeb. She had also raised a
counter claim for partition of counter claim A schedule properties,
which belonged to her late husband Usman @ Mujeeb and also
claimed set off in respect of the amount used by her from the
amount due to Usman @ Mujeeb for discharge of his liabilities. The
respondents filed Ext.P9 replication to the counter claim which was
produced along with I.A.1132/16 by the petitioners wherein they
have stated that the immovable property need not be included in
the suit and they have released their undivided share in the counter
claim A schedule property in favour of their son Basheer, who is a
necessary party to the proceedings. They have also denied that
deceased had any liabilities which the counter claim plaintiff had
discharged and they have no liability to contribute anything to the
same. Further the valuation shown is not proper and the court fee
paid is also not correct. On the basis of the replications, plaintiff
filed I.A.937/13 to implead her daughter Shamna Nasnim, minor
represented by the first petitioner and Pulickapoyil Basheer as
additional defendants 2 and 3 in the suit and also filed I.A.938/2013
to appoint the defendant who is the first petitioner herein as the
guardian of the proposed 2nd defendant, who is a minor. The
respondent filed counter to the same stating that in their suit 3rd
parties cannot be impleaded and they prayed for dismissal of the
applications. The court below had by impugned Ext.P7 and P8
orders dismissed those application. Aggrieved by the same, the
present petition has been filed by the petitioners, who are the
petitioners in those applications before the court below.
4. Heard Sri. S. Kannan, counsel representing Sri. Firoz K.M,
counsel for the petitioners and Sri.V.V. Surendran, counsel
appearing for the respondents.
5. Learned counsel appearing for the petitioners submitted
that the court below was not justified in dismissing the
application for impleading additional defendants and also for
appointing the first petitioner as guardian of the second petitioner in
the counter claim. The court below had not understood the
principles behind filing of counter claim. If there are other cause
of action which arose for the defendant against the plaintiffs, the
defendant can raise a counter claim against the plaintiffs. It
need not necessarily be on the basis of the same cause of action on
which the plaintiffs had laid the claim against the defendant. It is
also not necessary that counter claim can be made only in
respect of money claim and not in respect of other subject
matter as well. The intention behind raising counter claim is to
avoid multiplicity of suits between the same parties. If at all the
court below felt that they cannot be impleaded as defendants in
the plaint, they can be permitted to be impleaded as defendants in
the counter claim as counter claim is also to be treated as plaint
for the purpose of considering the question involved in the counter
claim between the parties. He had relied on the decision reported
in Sarojini Amma v. Dakshayani Amma (1996 (2) KLT 74),
Sukhalal v. Munsiff, Cherthala (1997(1) KLT 247), P.V. George
v. Bank of Madurai Ltd (1986 KLT 406) and Chellappan v.
Krishnankutty (2001 (3) KLT 403) in support of his case.
6. On the other hand, learned counsel for the respondents
submitted that the suit is one filed for recovery of certain amount
from the defendants, who received the same from the insurance
company in which the plaintiffs are also having right and it is only
to realize their share that the present suit has been filed. So the
claim in respect of partition of immovable properties cannot be
treated as counter claim. So according to their counsel, the court
below was perfectly justified in dismissing the application for
impleading and also for appointment of guardian on the ground that
they cannot be impleaded in the suit filed by the plaintiffs.
7. It is an admitted fact that the respondents are the parents
of deceased Usman @ Mujeeb and the petitioners herein are the
widow and child of deceased Usman @ Mujeeb. It is also an
admitted fact that late Usman @ Mujeeb had taken life insurance
policy from the Life Insurance Corporation of India and also from
Bajaj Alliance Insurance showing his wife, the first petitioner
herein, as the nominee. It is also an admitted fact that he was also
having immovable property. It is an admitted fact that as a
nominee, the first petitioner had withdrawn the amount due
under the policies from the Life Insurance Corporation and Bajaj
Alliance Insurance and plaintiffs/respondents herein who are
parents of deceased Usman had filed the above suit for recovery
of their share from the amount due under the policies on the death
of their son Usman @ Mujeeb. Though the suit was filed as a
recovery of their share, virtually it is a suit for partition and
realistion of their share in the amount received by the first
petitioner herein as a nominee of the deceased husband. So the
counter claim filed by the defendants for partition of the immovable
properties belonging to deceased Usman @ Mujeeb as a counter
claim cannot be said to be a different cause of action or subject
matter which cannot be raised as a counter claim in the same suit.
8. Order 8 Rule 6A to G of Code of Civil Procedure deal with
counter claim and the procedure for dealing with the same which
reads as follows:
"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 excded 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.
6B.Counter-claim to be stated:- Where any
defendant seeks to rely upon any ground as supporting a
right of counter-claim, he shall, in his written statement, state
specifically that he does so by way of counter-claim.
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.
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.
6E. Default of plaintiff to reply to counter-claim:- If
the plaintiff makes default in putting in a reply to the
counter-claim made by the defendant, the Court may
pronounce judgment against the plaintiff in relation to the
counter-claim mad against him, or make such order in relation
to the counter-claim as it thinks fit.
6F. Relief to defendant where counter-claim
succeeds:- Where in any suit a set-off or counter -claim is
established as a defence against the plaintiff's claim, and any
balance is found due to the plaintiff or the defendant, as the
case may be, the Court may give judgment to the party
entitled to such balance.
6G. Rules relating to written statement to apply:-
The rules relating to a written statement by a defendant shall
apply to a written statement filed in answer to a counter-claim"
9. In the decision reported in Pathrose Samual v.
Karumban Parameswaran (AIR 1988 Ker. 163) this court has
held that:
"There is definitely some difference between 'set off' and 'counter
claim'. Set off is also in a sense a counter claim against the
plaintiff, but in essence it is a form of defence in which the
defendant while acknowledging the justice of the plainiff's claim
sets up a demand of his own to counter balance it either wholly
or in part. Counter claim is substantially a cross suit. It is really
a weapon of offence and enables the defendant to enforce a claim
against the plaintiff as effectively as an independent action. It
need not be an action of the same nature as the original action or
even analogous thereto even though the claim has to be one
entertainable by the court. According to the dictionary meaning
it is a claim made to offset another claim especially in law whereas
set off is something that counter balances or makes up for
something else. The proposition that a counter claim can be made
only in a suit for money cannot be accepted. There is nothing in
R.6A limiting such claims to money suits in order to contend that
whatever could be claimed is only the excess amount due to the
defendant after setting off what is due to plaintiff under R.6. The
words "in addition to his right of pleading a set off under R.6"
appearing in R.6A are not capable of making such a restriction"
10. In the decision reported in Raman Sukumaran v.
Velayudhan Madhayan (AIR 1982 Ker. 253) it has been held that:
"Rule 6A contemplates counter claim in any suit. The scheme
of the new rule is to permit the defendants to set up counterclaims,
which arise between the parties and which are cognizable by the
Court where the suit is pending. The object appears to be to
reduce pendency of cases so that cause of action and cross claim
similar in nature could be clubbed together and disposed of by a
common judgment".
11. In the decision reported in Gaya Prasad v. Smt.
Jamwanti Devi (AIR 1998 Patna 53) it has been held that:
"Rule 6A of O.8 was introduced by amendment of 1976 and
the very purpose of introducing this new rule on the
recommendation of the Law Commission of India was to avoid
multiplicity of the proceedings inasmuch as ignoring the frame of suit
and giving right to the defendant to raise not only the plea of set off
but also counter claim by setting up rights to himself irrespective of
the fact whether the cause of action for counter claim had accrued
afterwords of the filing of the suit. From the wordings and plain
reading of Rule 6A of Order VIII it is clear that it contemplates
counter claim with respect to any suit without having any restriction.
Order XX, Rule 19(1) cannot restrict harmonious reading of Order
VIII, Rule 6A rather if it is restricted in that sense then the whole
purpose of introduction of new Rules 6A to 6G would be
frustrated."
In that case the Patna High Court has held in a suit for eviction
the defendant is entitled to set up a claim for title in himself as
counter claim and such a counter claim is maintainable.
12. In the decision reported in Mohinder Singh Jaggi v.
Data Ram Jagannath (AIR 1972 SC 1048) it has been held that:
"Where in a suit for recovery of certain amount on the basis of
Khata, the defendant by his additional written statement puts
forward a counter claim for accounting arising out of transactions
between him and the plaintiff on the basis of an agreement and
the Supreme Court has held that the written statement can be
treated as a cross claim."
13. In the decision reported in Manikchand Fulchand
Katariya v. Lalchand Harakchand Katariya (AIR 1994 Bom.196)
it has been held that "counter claim is not limited to money suit
alone. In a suit for ownership and possession when the defendants
sets up title and possession in himself, decree granting possession
of suit premises in favour of the defendant passed on the basis of
the counter claim is perfectly justifiable.'
14. In the decision reported in Jag Mohan Chawla v. Dera
Radha Swami, Satsang and others (AIR 1996 SC 2222) it has
been held that:
"In a suit for injunction, counter claim for injunction in respect of
the same or a different property is maintainable. 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. 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 on 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".
15. In the decision reported in Rohit Singh and others v.
State of Bihar (now State of Jharkand) (AIR 2007 SC 10), it has
been held that "counter claim cannot be be raised after framing of
issues and counter claim directed solely against co-defendants
cannot be maintained. The court cannot proceed and grant decree
in favour of said co defendant only on the basis that no answer
has been filed to their counter claim by other defendants".
16. In the decision reported in Gurbachan Singh v. Bhag
Singh and others (AIR 1996 SC 1087) it has been held that "in a
suit for injunction, the claim for possession by defendant also can
be entertained by virtue of Order 8 Rule 6(A)(1) of Code of Civil
Procedure.
17. In the decision reported in Bollepanda P. Poonacha v.
K.M. Madapa (2008 (13) SCC 179) it has been held that "a counter
claim has been made on the basis of subsequent trespass by the
plaintiff cannot be entertained as cause of action for filing the
counter claim cannot be said to have arisen prior to the filing of
the written statement".
18. In the decision reported in Ramesh Chand Ardawatiya
v. Anil Panjwani (AIR 2003 SC 2508) it has been held that "right
to file counter claim runs with right of filing written statement. If
no written statement is filed, no counter claim can be
entertained."
19. In the decision reported in Rohit Singh and others v.
State of Bihar (now state of Jharkhand) and others (2006
(12) SCC 734) it has been held that in order to maintain a counter
claim, it has be directed against the plaintiff though incidentally or
along with it, it may also claim relief against co defendant.
20. In the decision reported in Vijay Prakash Jarath v. Tej
Prakash Jarath (2016 (6) SCJ 8) it has been held that "cause of
action in respect of which a counter claim can be filed, should
accrue before the defendant has delivered his defence and not
thereafter".
21. So it is clear from the above dictums that counter claim
need not be restricted to the cause of action on the basis of which
the plaintiffs had raised the claim and it can be a different
cause of action and not even having nexus with the cause of action
raised by the plaintiffs but it should be between the same parties
and that had accrued to the defendants prior to the filing of the
written statement or deliver his defence or right to deliver his
defence expires. It need not necessarily be in respect of the same
subject matter as well but counter claim can be entertained only
against the plaintiffs and it cannot be claimed only against co
defendants alone but if it was directed against the plaintiff
incidentally relief can be claimed in respect of co defendants as well
and in such cases counter claim is maintainable as against the
plaintiffs as well as co defendants. It is also settled law that
counter claim cannot be raised after issues are framed and after
the defence is delivered by the defendants.
22. The question as to whether a third party can be
impleaded in order to consider the question on counter claim has
been considered by this court in the decision reported in Sarojini
Amma's case (cited supra) where it has been held that:
"Counter claim not necessarily confined to claim made
against the plaintiff. Addition of other interested parties cannot be
said to be in contravention of Rule 6A if the court is satisfied
that without them the adjudication will be incomplete". Further in
the same decision it has been held that the additional parties can
be impleaded in the counter claim as additional defendants if they
are also necessary parties to effectively adjudicate the matter as
the counter claim is treated as plaint in the cross suit".
23. In the decision reported in Sukhalal's case (cited
supra) this court has held that:
"Order 8 Rule 6A does not require counter claim to be in the
written statement itself. It should be before the expiry of time for
delivering his defence. There is no requirement in the said rule that the
counter claim should form part of the written statement".
24. It is also held in the same decision that:
"The counter claim need not be connected with the original
cause of action/matter pleaded by plaintiff. The words "any right of
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."
25. In the decision reported in P.V. George's case (cited
supra), it has been held that "Impleading at the instance of the
defendant can be done if found that such impleadment is
necessary for effective adjudication."
26. In the decision reported in Chellappan's case (cited
supra) it has been held that "it is proper to implead a person who
has direct interest in property as additional defendant so as to
avoid multiplicity of suits. The interest should be direct, legal and
not commercial." In that decision this court has relied on the
dictum laid down in Vishnu Naboothiri v. Sankara Pillai (1968 KLT
692) where Justice Krishna Iyer as he then was quoted the
following passage from Mulla's C.P.C. Vol.1 which reads as
follows:
"The test is not whether the joinder of the person proposed to
be added as a defendant would be according to or against the
wishes of the plaintiff or whether the joinder would involve an
investigation into a question not arising on the cause of action averred
by the plaintiff. It is whether the relief claimed by the plaintiff will
directly affect the intervener in the enjoyment of his rights. It is not
enough that the plaintiff's right, and rights which the person desiring
to be made a defendant wishes to assert should be connected with
the same subject matter. The intervenor must be directly and legally
interested in the answers to the questions involved in the case. A
person is legally interested in the answer only if he can say that it may
lead to a result that will affect him legally that is by curtailing his
legal rights."
27. It is clear from the above dictums that, a third party
can be impleaded to consider the question of counter claim, if
the court is of the opinion that their presence is required for
proper adjudication of the counter claim between the counter claim
plaintiffs and the counter claim defendant. Further in the decision
reported in Sarojini Amma's case (cited supra), the question
arose when certain parties were impleaded as respondents in the
counter claim, the validity of the same was challenged and this
court has held that in order to determine the counter claim between
the parties if the presence of non party to the plaint is also required,
then they can be impleaded as defendants in the counter claim
though defendants are not entitled to implead them as additional
defendants in the plaint.
28. In this case, the petitioners wanted to implead Basheer
son of the plaintiffs to whom the plaintiffs have released their
rights in the immovable property inherited by them as legal heir
of late Usman as contended by them in the plaint as well as in
their replication and as also the second petitioner herein as
supplemental defendants in the suit and also appoint the first
petitioner as guardian of the second petitioner. The right to
implead in the suit is always on the plaintiffs as they are the
masters of the suit. If a third party wanted to come on record by
himself, then he can file an application to implead himself in the
suit and if the court is satisfied that he can be impleaded and his
presence is required for proper adjudication of the case, then the
court can allow the third party to be impleaded in the suit. But
the defendant had no right to get any third party to be impleaded
in the plaint. If the defendant wants to implead any party whom
he or she feels required for proper adjudication of the counter
claim between the plaintiffs and the defendant, raised by the
defendant in the written statement, then such party can be
impleaded as additional defendant in the counter claim and not in
the suit. So under such circumstances, though the court below
had come to a conclusion that no third party can be impleaded
which appears to be not correct, but the ultimate result of the
petition dismissing the same is right because the defendant is not
entitled to implead any third party as additional defendants in the
suit but if they want, they can file an application to implead them
as additional defendants in their counter claim. So under such
circumstances, this court is of the view that dismissal of the
application by the court below is not sustainable for the reasons
stated in the order, but the same is found to be justifiable for
the reasons mentioned above. If the petitioners file an
application to impead a party whom they want to implead for
proper adjudication of the counter claim in the counter claim as
additional defendants, the court below is directed to consider the
same and pass appropriate orders in that application taking into
consideration the principle on this aspect discussed by the court in
the judgment. Further whether the counter claim will have to be
proceeded along with the suit claim or it will have to be relegated
to a separate suit as contemplated under Order 8 Rule 6(c) of
the Code can also be considered by the court when such a
contention has been raised by the counter claim defendants who
are the plaintiffs in the suit as required to be decided under that
provision in accordance with law.
So under such circumstances, this court feels that there is
no necessity to interfere with the order passed by the court below
invoking the power under Article 227 of the Constitution of India,
but leaving liberty for the petitioners to file an application to
implead them as additional defendants in the counter claim
raised by the defendant in the written statement and subject to
consideration of the contention to be raised under Order 8 Rule 6(c)
of the Code by the counter claim defendants, this petition is
disposed of.
With the above directions and observations this petition is
disposed of. Registry is directed to communicate a copy of this
judgment to the court below at the earliest.
K. RAMAKRISHNAN, JUDGE.
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