-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.176/2010 1 Mr. Otto Jaime Hamilton P. De Souza, son of late Antonio Serafin De Souza, married, retired, and his wife, 2 Mrs. Diana Rosa V. E. De Souza, wife of Otto Jaime Hamilton P De Souza, …...... Petitioners. Versus 1 Mr. Mohan G. Kurade, 2 Mrs. Nila Mohan Kurade, wife of Mohan Kurade, both residing at Amogh, M Ghag Marg Prabhadevi, Mumbai 400 025 …...... Respondents. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar, Advocate for the petitioners. Mr. M. P. Almeida, Advocate for the respondents. CORAM :- N. A. BRITTO. DATE :16th June, 2010. -2- ORAL ORDER Heard. 2. The Writ Petitioners are the plaintiffs in Special Civil Suit No. 4/2009/B. In this Writ Petition they challenge the Order dated 24.11.2009 by which their application for exclusion of counter claim filed by the defendants has been rejected. 3. The plaintiffs filed the said suit for permanent and mandatory injunction. For mandatory injunction to direct the defendants to remove or demolish the retaining wall built by them in the suit property and also for permanent injunction. 4. The dispute is in relation to the property having Land Registration No. 483. According to the plaintiffs they had purchased a plot admeasuring 400sq.mts in the year 1901 from the family of Velho and that by another deed of 1907 they had purchased 2720sq.mts from the family of Ribeiro Santana. The defendants also claim to have purchased two plots of the same property bearing no. 8 and 9 in the year 1994 from the family of said Ribeiro Santana. According to the -3- plaintiffs the defendants have encroached upon the property purchased by them by two sale deeds to the extent of about 63.70sq.mts by construction of said retaining wall. 5. The defendants contested the suit and filed a counter claim and in the said counter claim the defendants sought to implead the present owners of the said property and sought certain reliefs against the plaintiffs. 6. The defendants sought a declaration that second sale deed of the plaintiffs dated 13.9.1907 included the property of the first sale deed of 400sq.mts., as according to the defendants, what was sold by the first sale deed was usable domain only. The defendants also sought a declaration that the said area of 2720sq.mts at present corresponds only 2641sq.mts being the southern portion of the property presently surveyed under chalta no.24 of P. T. sheet no. 109. They also sought for declaration that the portion where they have constructed the retaining wall was integral part of the remaining area of said property bearing no. 483 which belongs to the proposed -4- defendant nos. 3 to 15 and further sought declaration that as they had done the said construction in good faith they were entitled to purchase the same at the price to be agreed by the parties, or in the event the parties not succeeding, to be determined by the Court. 7. The plaintiffs then filed an application dated 26.3.2009 for exclusion of counter claim contending that the counter claim was filed besides the plaintiffs and the defendants against others who were not the parties to the suit. It was further stated that the defendants did not have locus standi to maintain the counter claim. The petitioners also stated that the claim raised by the defendants cannot be adjudicated by way of counter claim. 8. The learned trial Court after referring to the prayers of the counter claim, referred to the provision of Rule 15, 16 and 17 of Order 8 introduced by the High Court, and accepted the defendants contention that the counter claim could be set up against the plaintiffs as well as other persons who were not the parties to the suit. Learned Trial Court proceeded to dismiss the application observing that the -5- defendants in their counter claim has raised a question between themselves and the plaintiffs alongwith other person i.e the owners of the property registered under no. 483 wherein encroachment is alleged by the plaintiffs, and, proceeded to dismiss the said application. 9. Rule 6A of Order 8, C.P.C. deals with the filing of the counter Claim by the defendants and it is stated that Rule 13 introduced by the High Court is akin to Rule 6A. Rule 6A (1) provides that the 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 plaintiff, any right or claim in respect of a cause of action accruing to the defendants against the plaintiff either before or after the filing of the suit but before defendant has delivered his defence or before the time limit 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. -6- 10. Rule 15 provides that where a defendant by a written statement sets up any counter claim, which raises questions between himself and the plaintiff alongwith any other person, he shall add to the title of his written statement a further title similar to the title in a plaint, setting forth the names of all the persons who, if such counter claim were to be enforced by a cross suit, would be defendants to such cross suit, and shall deliver copies of his written statement to such of them as are already parties to the suit within the period within which he is required to deliver it to the plaintiff. 11. Rule 16 provides for service of summons when counter claim is against persons, who are not already parties to the suit. Rule 17 provides that any person not a defendant to the suit, who is served with a written statement and counter claim as aforesaid, must appear therein as if he had been served with a writ of summons to appear in the suit. 12. Shri C. Pereira, the learned senior counsel appearing on behalf of the plaintiffs submits that defendants do not contend that the -7- said area of 63.70sq.mts is part of plot no. 8 and 9 purchased by them. Learned Counsel further submits that defendants are seeking a prayer that the land encroached by the defendants be declared to be the property of said Ribeiro Santana and as such they are seeking reliefs against family of said Ribeiro Santana who are not co-defendants to the suit filed by the plaintiffs. Learned Senior Counsel submits that the plaintiffs cannot be made to litigate against other defendants whom they have chosen not to implead in the suit and that the plaintiffs will either succeed or fail in the suit based on their claim. Learned Counsel further submits that the prayer in the counter claim is to purchase the disputed portion from the said owners namely the family of Ribeiro Santana which relief the defendants are otherwise not entitled to in the suit filed by the plaintiffs. The main contention of Mr. Pereira, is that a counter claim has got to be directed against the claim of plaintiff though incidentally reliefs can be sought against other defendant or defendants proposed to be joined. Learned Senior Counsel has placed reliance on decision of Hon'ble Apex Court in the case of Rohit Singh and ors. Versus State of Bihar, AIR 2007 Supreme Court 10. -8- 13. On the other hand, Shri Pinto Almeida, the learned counsel appearing on behalf of the defendants submits that decision cited does not take into account the provision of Rule 15, 16 and 17 as introduced by the High Court. According to Learned counsel the proposed defendants becomes necessary parties because the plaintiffs as well as defendants have purchased their respective properties from the said common owners. According to the learned counsel the sale deed of the first property admeasuring 400sq.mts does not shown that it is bounded by the second property admeasuring 2720sq.mts which is an indication that first property is included in second property and what the plaintiffs have purchased by virtue of first sale deed was only usable domain to construct a house in the property separately purchased. Learned counsel submits that the main controversy between the parties is whether encroached portion is part of property of plaintiffs or of the proposed defendants and therefore the proposed defendants are joined to the suit to finally decide the controversy involved in the suit, between the parties. -9- 14. The case of Rohit Singh and others( Supra) stood on its own facts which are not at all similar to the facts of the case at hand but if at all any proposition of law could be culled out from the said decision it is this: that a counter claim directed solely against co- defendants cannot be maintained. A counter claim has necessarily to be directed against the plaintiffs in the suit, though incidentally or alongwith it, it may also claim relief against co-defendants. 15. In the case at hand, the defendants have sought certain reliefs against the plaintiffs, interalia, to the effect that what is now available on site is only 2641 sq.mts; further, that first property of the plaintiffs is included in the second property purchased by them and for a declaration that their retaining wall falls in the property which is owned by the proposed defendant nos. 3 to 15. It is the contention of defendants that they have constructed the said retaining wall not only with the permission of the authorities but also with the permission of said family of Rebeiro Santana. The main contention of the learned Senior Counsel is in accordance with the law laid down by the Apex Court in Rohit Singh and others and the counter claim filed by the -10- defendants is in accordance with that law. Considering the facts of the case, the defendants herein have sought not only reliefs against the plaintiffs but also relief against the proposed defendants and therefore as rightly held by the learned Trial Court their counter claim appears to be within the scope of Order 8 Rule 6A read with rule 13 and 15, 16 and 17 as introduced by the High Court. Considering these facts impugned Order cannot be faulted with. 16. I find no merits in the Writ Petition. Consequently the Writ Petition is hereby dismissed with no order as to costs. N. A. BRITTO, J. vn*