SBCWP NO.6341/2009 – KHUMAN SINGH V/S LAXMAN SINGH AND ORS. . :JUDGMENT DTD.17.7.2009 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.6341/2009 Khuman Singh Versus Laxman Singh and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.B.L. Choudhary, for the petitioner. DATE OF JUDGMENT : 17th July, 2009. JUDGMENT 1. This writ petition is directed against the orders dtd.24.4.2009 and 25.4.2009 passed by the learned trial Court. By the first order dtd.24.4.2009, the learned trial Court while allowing the application of the defendant under Order 1 Rule 10 C.P.C. impleaded Kishan Singh V/s Bheru Singh as co-defendant in the said suit filed by the plaintiffs seeking injunction against the defendants who allegedly encroached over the public way. The learned trial Court found that to avoid multiplicity of litigation, added defendant Kishan Singh is necessary and proper party because he is also alleged to have encroached over the same land along with other co-defendants and they are close relatives being brothers. SBCWP NO.6341/2009 – KHUMAN SINGH V/S LAXMAN SINGH AND ORS. . :JUDGMENT DTD.17.7.2009 2/5 2. By the second order dt.25.4.2009, the learned trial Court rejected the application of the plaintiff filed under Order 8 Rule 6C C.P.C. read with Section 151 C.P.C. for excluding the counter-claim of the defendant and thus held the counter-claim is maintainable against the newly added defendant, namely, Kishan Singh. 3. The learned counsel for the plaintiffs – petitioners submits that impleadment of said person under Order 1 Rule 10 C.P.C. as well as rejection of the application of the plaintiffs - petitioners for excluding the counter-claim under Order 8 Rule 6A C.P.C. is wrong and therefore, the impugned orders deserve to be set aside. The learned Counsel submits relying on the decision of Bombay High Court in the case of Narhari V/s Gyanba reported in 2000 AIHC 4560 and decision of this Court in the case of Vishwanath V/s Vishwanath reported in 2002 (1) DNJ 443 and decision of Punjab and Haryana High Court in the case of Kulwant Singh V/s Gurcharan Singh Kumar AIR 2003 (P & H) 1 that the counter-claim against the co- defendant cannot be sustained under Order 8 Rule 6C C.P.C. and therefore, the impugned order deserves to be set aside. 4. Having heard the learned counsel for the petitioners- plaintiffs, this Court does not find any force in the submissions made at the Bar. The learned trial Court has rejected the application under Order 8 Rule 6A C.P.C. relying upon the decision of the Hon'ble Supreme SBCWP NO.6341/2009 – KHUMAN SINGH V/S LAXMAN SINGH AND ORS. . :JUDGMENT DTD.17.7.2009 3/5 Court in the case of Gurbachan Singh V/s Bhag Singh reported in AIR 1996 SC 1087 in which the Hon'ble Supreme court after discussing the amended provisions of Rule 6A held that prior to said amendment in Rule 6 by the Amendment Act of 1976, 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 defendant 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. 5. In the present case, the learned trial Court while impleading said Kishan Singh S/o Bheru Singh, brother of other co-defendnats has found that he had also encroached over the public way for which the injunction was sought by the plaintiff in the suit. Therefore, he was also necessary and proper party. On the same ground, the learned trial Court found that the counter claim raised by the defendant in the SBCWP NO.6341/2009 – KHUMAN SINGH V/S LAXMAN SINGH AND ORS. . :JUDGMENT DTD.17.7.2009 4/5 written statement would be maintainable against the newly added co- defendant Kishan Singh also. A bare perusal of the amended provision of Rule 6A of Order 8 would show that there is no such limitation under the said Rule 6A of Order 8 that such counter-claim cannot be maintained against the co-defendant. The provisions of Order 8 Rule 6A C.P.C. are reproduced hereunder for ready reference: “O.8 R.6A. Counter Claim by defendant :- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. SBCWP NO.6341/2009 – KHUMAN SINGH V/S LAXMAN SINGH AND ORS. . :JUDGMENT DTD.17.7.2009 5/5 (3) The plaintiff shall be at liberty to file 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 as plaints.” 6. The amended provisions quoted above itself makes it clear that the counter-claim can be raised in any kind of suit whether it is in the nature of claim for damages or not, and therefore, it cannot now be contended that after amendment in the provisions that such counter claim can be set up only in money suits. The Bombay High Court's view cited by the learned counsel for the petitioner cannot be sustained now in view of Hon'ble Supreme Court's decision and amended provisions quoted above. The other judgments relied upon by the learned counsel for the petitioner are also in different facts and do not directly hold that the counter-claim cannot be entertained against co-defendant newly added in the suit. The impugned orders passed by the learned trial Court are, therefore, unassailable and there is no force in this writ petition. The writ petition is accordingly dismissed. No order as to costs. A copy of this order may be sent to the opposite party as well as the trial Court. (Dr.VINEET KOTHARI)J. Item No.10 Ss/-