IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 362 of 2009 Date of decision: 27.09.2011 Gajender Paul ... Petitioner Versus Yadvindri and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Sanjeev Kuthiala, Advocate. For the respondents: Mr. Bhupender Gupta, Senior Advocate, with Ms. Charu Gupta, Advocate, for respondent No. 1. V.K. Ahuja, J. (Oral): The present petition under Article 227 of the Constitution of India has been filed by the petitioner/plaintiff against the order passed by the learned Civil Judge (Senior Division), Mandi, dated 30.12.2008, vide which he had dismissed the application filed by the petitioner under Order 8 Rule 6-C read with Section 151 C.P.C., seeking exclusion of counter claim filed by defendant No. 1 in the case. 2. A notice of the petition was issued to the respondents. 3. Brief facts leading to the filing of the application by the petitioner are that a suit for permanent injunction was filed by the plaintiff as against the defendants. In the said suit, a counter claim was set up by the respondent/defendant and replication as well as written 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 statement to the said counter claim was also filed by the plaintiff. However, the present application was filed by the petitioner for exclusion of the counter claim filed by defendant No. 1. The learned trial Court after referring to the decision of the Supreme Court in Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, AIR 1996 Supreme Court 2222 held that the application does not deserve to be allowed and was not maintainable and was accordingly dismissed. 4. I have heard the learned counsel for the parties and have also gone through the record. 5. The submissions made by the learned counsel for the petitioner during the course of arguments were that the counter claim preferred by the defendant was beyond the pecuniary jurisdiction of the Court, that the question to be considered by the learned trial Court was in regard to the validity of the compromise and as to whether the said compromise could be challenged in the counter claim filed by the defendant. It was also submitted that since the matters raised in the counter claim will prolong the litigation and complicate the issue, therefore, it was desirable that the defendant should have been directed to file a separate suit rather than claiming the reliefs as claimed by him in the counter claim. 6. To substantiate his submissions, learned counsel for the petitioner had relied upon the said decision relied upon by the learned trial Court. He has also relied upon the decision in M/S Ballabh Dass and another Vs. S.B.B.J. and others, AIR 1997 Rajasthan 199, wherein it was observed by the Court that a counter claim can be excluded under Rule 6-C of Order 8, where the Court finds that it is 3 embarrassing, or the filing of the counter claim is not fair to the plaintiff or where it is likely to create complications and prolong the trial. 7. A perusal of the original application filed by the plaintiff, which was dismissed by the learned trial Court, shows that no such objection was raised as now argued by the learned counsel for the petitioner that questions pertaining to the validity of the compromise and pecuniary jurisdiction of the Court was not there as well as the pleas raised that it will complicate the issues and prolong the litigation. Once these questions were not raised in the application filed by the petitioner, the learned trial Court was not required to give its findings on any of these points insofar as these questions in regard to pecuniary jurisdiction or validity of the compromise are concerned. These pleas can be raised by the petitioner in the replication to the counter claim filed by the defendants and issues can be framed and all those questions can be determined by the learned trial Court. A perusal of the decision of the Apex Court in Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, AIR 1996 Supreme Court 2222, shows that following observations were made in para-5, which are relevant and are being reproduced below:- “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 6 A, the language is so couched with words of wide 4 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.“ 8. This decision is very much clear that the counter claim is no longer confined to money claim or to cause of action on the same nature as original action of the plaintiff. It was also held that it need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. It also shows that the counter claim need not necessarily arise from or have any nexus with the cause of action of the plaintiff. The observations made are very much clear and were applicable to the present case, since no other pleas was raised in the application filed by the petitioner, which required consideration by the Court and this decision was clear enough that the counter claim filed by the defendant could be looked into by the learned trial Court in the same suit by framing the issues and granting the relief, if any, to the defendant. Therefore, the impugned order does not suffer from any illegality, which needs to be corrected while exercising the writ jurisdiction by this Court. 9. In view of the above discussion, I accordingly hold that there is no merit in the petition filed by the petitioner, which is 5 dismissed, so also the pending miscellaneous application(s), if any. Interim order stands vacated. 10. Parties through their learned counsel are directed to put up their appearance before the learned trial Court on 20th October, 2011. The trial Court shall proceed with the case in accordance with law. A copy of the judgment be sent to the learned trial Court for information. Record be returned. ( V.K. Ahuja ), September 27, 2011 Judge (BSS)