CRP 274/2008 BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI By filing this application under Article 227 of the Constitution of India, the p etitioner, who is plaintiff in Title Suit No. 13 of 2004, has put to challenge t he order, dated 02-07-2008, passed, in the said suit, by the learned Civil Judge (Senior Division), Karimganj, whereby the plaintiff-petitioner’s petition, file d in the said suit, seeking to allow him to adduce evidence in support of the wr itten statement, which the petitioner, as plaintiff, had filed against the count er-claim of the defendant No. 3 in the said suit, has been rejected. MATERIAL FACTS: 2. Before entering into the discussion of the law governing the questions, which this application, made under Article 227, has raised, it is necessary to t ake note, in a nutshell, of the material facts giving rise to the present applic ation. The material facts are as under: (i) The present petitioner, as plaintiff, instituted Title Suit No. 13 of 2004 aforementioned against the respondent praying for decree for declarat ion of his rights and interest in the suit property created due to investments m ade on development, construction and renovation of the suit property and also fo r a declaration that the deed of partition, which the defendants have executed, is collusive, illegal, mala fide and not binding upon the plaintiff, the said de ed being contrary to the agreement, dated 01-02-2002, executed between the plain tiff and the defendant No.1, and the power of attorney, dated 30-01-2002, execut ed by the defendant No. 1, in favour of the plaintiff, authorizing allowing him to look after Bharati Press situated on the suit land, the case of the plaintif f being, in brief, thus: (i) The plaintiff is a monthly tenant under the defendant No. 1 in respect o f the suit property on a monthly rental of Rs. 2,000/-, commencing from 01-02-20 02, with provisions contained in the agreement for renewal of tenancy. Before cr eation of tenancy, defendant No. 1 executed, on 30-01-2002, a registered power of attorney, in favour of the plaintiff, authorizing him to look after Bharati P ress, situated over the suit land. Based on the power of attorney, plaintiff ma de substantial investments on development and renovation of the suit property. T he defendant No. 3 made an attempt to encroach upon the suit property; hence, th e plaintiff had to institute a suit, being Title Suit No. 15 of 2004, in the Cou rt of the Civil Judge (Junior Division), Karimganj, for declaration that he is a monthly tenant under the defendant No. 1 and also for granting permanent injunc tion restraining defendant No. 3 from encroaching upon the suit property and an injunction was accordingly granted restraining the defendant No. 3 from encroach ing upon the suit property. The plaintiff came to learn that suppressing the ter ms of the said agreement of the tenancy, dated 30.01.2002, and the said power of attorney, dated 31.01.2002, the defendant No. 1, in collusion with the other de fendants including the defendant No. 3, has executed, on 27.01.2004, a registere d partition deed, partitioning, amongst themselves, some immovable properties in cluding the tenanted premises ignoring the investments, which the plaintiff had made on the development and renovation of the suit property. As the financial in vestments made by the petitioner on the development of the suit property had cre ated bona fide interest and right over the suit property in favour of the plaint iff and since the partition-deed had created a cloud on the right and interest, which the plaintiff had so acquired over the suit property, the plaintiff brough t the present suit, namely, Title Suit No. 13 of 2004. (ii) The defendant Nos. 1 and 2 filed a joint written statement asserting tha t the said power of attorney was a forged document. The defendant No. 3 filed a separate written statement denying and disputing the plaintiff’s claim over the suit property and describing him as a stranger to the suit property. Along with his written statement, the defendant No. 3 has also filed a counter-claim, where in the case of the defendant No.3 being as under: The suit property, along with some other land, was homestead land, which were ow ned and possessed by Basanta Kumar Dey Laskar. The outer house, located within t he said homestead, used to be utilized, being situated by the side of the road, as a printing press for carrying out business of printing work under the name an d style of M/S Bharati Press. While carrying out his said business of printing p ress, Basanta Kumar Dey Laskar died leaving behind three sons, namely, Bikash De y Laskar and Bidhan Dey Laskar (who are defendant Nos. 3 and 4 respectively), an d another son, namely, Biman Dey Laskar, who died, on 22-10-2002, leaving behind his widow, namely, Smti. Bithi Dey (i.e., defendant No.1) and a son, namely, Ap arup Dey (i.e., defendant No.2). As Basanta Kumar Dey Laskar’s wife, Khanoprabha Dey Laskar, died on 01-09-1986, the said three sons of Basanta Kumar Dey Laskar became joint owners of the whole property including the suit property, where th e said printing press was located. On the basis of the amicable arrangement made , the heirs of deceased Basanta Kumar Dey Laskar possessed and enjoyed the prope rties owned by Basanta Kumar Dey including the suit property. Biman Kumar Dey, s on of Late Basanta Kumar Dey Laskar, used to look after the business of the said printing press; but after his demise, the business was closed and the entire ou ter house, where the business of printing press was being carried out, had to be put under lock and key with all the machine and materials inside the said house . As the house located on the suit land remained closed, it got dilapidated and was left deserted. The defendant No. 2, the only son of Late Biman Dey, a school teacher, at Hojai, started staying with his mother, defendant No. 1, and they o ccasionally visited Karimganj. As the widow of Biman Dey used to hold the keys o f the outer house, the plaintiff, being a very cunning and intelligent man, mana ged to contact defendant No. 1 and convinced her to start the said printing pres s by alluring her with profits. All these developments remained unknown to the o ther two sons of Basanta Kumar Dey Laskar, namely, the defendant Nos. 3 and 4. I n the year 2001, on apprehension having arisen in the mind of the defendant No. 4 that the defendant Nos. 1 and 2, having shifted to Hojai, may sell the suit pr operty, which was the joint property as mentioned hereinbefore, they published a notice, in a news-paper, informing the public, in general, that since there was no partition of the homestead of Basanta Kumar Dey Laskar, the said property no r any part thereof can be sold until the partition. Eventually, all the defendan ts got together and they, on mutual agreement, partitioned the property along wi th the outer house by means of a registered partition deed, dated 24-01-2004. By virtue of this partition, the suit property has fallen in the share of the defe ndant No. 3, namely, Bikash Dey, and, thus, he has become the sole and absolute owner thereof. As the plaintiff has realized that he would be evicted from the s uit property, because of the partition, whereby the defendant No. 3 has become t he sole and absolute owner of the suit property, the plaintiff has filed the pre sent suit by making false allegations and seeking reliefs, which are untenable i n law. In the counter-claim, a declaration has been accordingly sought to the ef fect that the defendant No. 3 has title to the suit property including the suit house with consequential relief of eviction of the plaintiff with his men and ma terials from the suit property. (iii). Following the framing of the issues, the suit came to be fixed for heari ng. However, the plaintiff took adjournments on 15-06-2005, 10-08-2005, 23-09-20 05, 29-11-2005, 12-01-2006, 18-02-2006 and 23-03-2006. Lastly, the plaintiff, on 30.05.2006, sought for adjournment of hearing of the suit. As the learned tria l Court rejected, on 30.05.2006, the petition filed by the plaintiff for adjourn ment, the plaintiff filed yet another petition seeking to get re-called the orde r, dated 30.05.2006, aforementioned. By order, dated 30-11-2006, the learned tri al Court rejected the application, so made by the plaintiff seeking to get recal led the order, dated 30-05-2006. Aggrieved by the fact that the learned trial Co urt had rejected his prayer for adjournment of hearing and for allowing him time to adduce evidence, the plaintiff came to this Court and impugned the order, da ted 30-11-2006 aforementioned, by filing an application under Article 227 of the Constitution of India. By judgment and order, dated 28-02-2007, passed in CRP N o. 53/2007, the Court rejected the application made under Article 227 by taking the view that though under Order XVII Rule 1 of the Code of Civil Procedure, not more than three adjournments can be granted, the plaintiff has obtained several adjournments and in the fact situation of the case, the plaintiff was not entit led to any further adjournment. The revision accordingly failed and was dismisse d. (iv). Thereafter, the evidence, adduced by the defendants, was recorded, where upon the plaintiff filed a petition stating to the effect, inter alia, that in t he counter-claim of the defendant No. 3, the plaintiff had filed his written sta tement and the plaintiff needs to adduce evidence, in support of his written sta tement, for proper disposal of the counter-claim and he may, therefore, be allow ed to adduce evidence in support of his written statement filed in the counter-c laim. The learned trial Court has rejected the said petition, on 02-07-2008, on the ground that since the evidence of both the sides already stood closed and, o n being aggrieved that he had not been allowed adjournment to adduce his evidenc e, the plaintiff had already filed a revision before this Court and the same had been rejected, there was no further scope for the plaintiff to adduce evidence and if the plaintiff were to be allowed to adduce evidence, the defendants would be prejudiced. Aggrieved by the order, dated 02-07-2008, aforementioned, the pr esent revision has been filed. 3. In the backdrop of the facts set out above, this revision needs to be, n ow, considered. 4. I have heard Mr. N Choudhury, learned counsel for the plaintiff-petition er, and Mr. AS Choudhury, learned Senior counsel for the defendant-respondent No . 3. SUBMISSIONS: 5. Appearing on behalf of the petitioner, Mr. N. Choudhury, learned counsel , has submitted that though Order VIII Rule 6 A(2) lays down that a counter-clai m shall have the same effect as a cross-suit so as to enable the Court to prono unce a final judgment in the same suit both on the original claim and the counte r-claim, the fact remains that Rule 6E empowers the Court to pronounce judgment if the plaintiff defaults in filing a written statement in the counter-claim. Th is apart, points out Mr. N. Choudhury, learned counsel, Order VIII Rule 6 D perm its the Court to proceed with the counter-claim even if the suit, wherein the co unter-claim has been filed, is stayed, discontinued or dismissed. The provisions , so contained in Rule 6 D and E, according to Mr. Choudhury, necessitates the r egistration of the counter-claim as a cross-suit enabling thereby the Court to f rame issues, in the suit and the counter-claim, separately and record evidence i n the two, namely, the suit and the counter-claim separately so that two indepen dent judgments, one in the suit and the other in the counter-claim, may, if nece ssary, be passed. 6. Mr. Choudhury further points out that if the counter-claim is not regist ered separately, it would be become impossible to give decree in the counter-cla im, when the suit, wherein the counter-claim is filed, gets dismissed or discont inued. Necessarily, therefore, according to Mr. Choudhury, learned counsel, ther e would be two sets of evidence, one in the suit and the other in the counter-cl aim. 7. Mr. Choudhury contends that in the case at hand, the High Court had uphe ld the learned trial Court’s order refusing to grant of adjournment for hearing of the suit, when the plaintiff had applied for adjournment. The said adjournmen t was sought for, contends Mr. Choudhury, to give evidence in the suit, where th e burden of proof rested on the plaintiff, but in the counter-claim, the burden to prove the case, which the defendants have set up, is on the defendants and, i n such a case, when the plaintiff had filed his written statement in the counter -claim, he was entitled to give evidence in support of his claim even if the def endants chose not to give any evidence. The learned trial Court has, however, su bmits Mr. Choudhury, rejected the petitioner’s prayer for allowing him to adduce evidence in support of his written statement filed in the counter-claim on the ground that the plaintiff’s earlier prayer for adjournment of the hearing of the suit has already been rejected. It has escaped the attention of the learned tri al Court, submits Mr. N. Choudhury, learned counsel, that the earlier applicatio n for adjournment was in respect of the plaintiff’s burden to adduce evidence in support of the issues framed in the suit and not in the counter-claim, whereas the later petition was filed, in the counter-claim, for opportunity to adduce ev idence in support of the plaintiff’s written statement. Hence, the plaintiff, ac cording to Mr. Choudhury, has the right to adduce evidence in support of his wri tten statement filed in the counter-claim, and the impugned order disallowing th e prayer, so made by the plaintiff, is contrary to law contained in that behalf. 8. Resisting the revision, Mr. AS Choudhury, learned Senior counsel, has su bmitted that irrespective of fact as to whether a counter-claim shall or shall n ot be registered as a cross-suit, the fact remains that the plaintiff’s earlier application for adjournment of hearing of the suit was rejected by the learned t rial Court and upheld by this Court and, hence, the plaintiff cannot be given an y further opportunity to adduce evidence in the garb of a plea that the plaintif f wants to adduce evidence in support of the written statement filed in the coun ter-claim. According to Mr. AS Choudhury, learned Senior counsel, even in a suit , where the counter-claim is filed, the opportunity to give evidence would be gi ven to the plaintiff only once, because the burden lies on the plaintiff to prov e his case in order to get a decree in the suit and he also has the liability to get the counter-claim dismissed. A plaintiff cannot receive, contends Mr. AS Ch oudhury, opportunity to give evidence twice, once in the suit and, then, once ag ain, in the counter-claim. Such an approach, according to Mr. Choudhury, would d efeat the whole scheme of pronouncement of a final judgment as perceived by Orde r VIII Rule 6A(2). Mr. AS Choudhury, therefore, submits that this revision is wh olly without merit and may be dismissed with cost. 8. While considering the present application made under Article 227, it may be noted that in Amton -vs- Bobbett, reported in (1889) 22 QBD 543, it was obse rved, A counter-claim is, therefore, to be treated, for all purpose for which j ustice requires it to be so treated, as an independent action. 9. Is, therefore, a counter claim an independent action? 10. The question, posed above, brings us to the historical background of cou nter-claim. In order to clearly understand the development of the legal remedy o f counter-claim, one has to take note the origin of the term ’cross suit’ or ’cr oss action’. HISTORICAL BACKGROUND OF ’CROSS-SUIT’ AND ’COUNTER-CLAIM’ 11. The origin of the terms ’cross suit’ or ’cross action’ may be traced to the terms ’suit’ and ’action’. The right or remedy of set off was unknown in com mon law, for, according to common law, mutual debts were distinct and inextingui shable, except by actual payment, release, or agreement. A defendant, who had a demand against a plaintiff, was, therefore, compelled to resort either to his cr oss action or a bill in chancery except in a few limited cases, wherein very res tricted right of recoupment was available. 12. Since the common law did not permit set off to be raised by the defendan t in the action brought by the plaintiff, the defendant had to bring an independ ent action known as ’cross action’ in order to set off the claim of the plaintif f, but such ’cross action’ did not give the benefit of withholding of the paymen t of the plaintiff’s claim if the plaintiff’s suit was decided prior to the cros s action brought by the defendant. The consequences of a money decree were sever e as the defendant could be sent to debtor’s prison. 13. The above deficiency of the common law, with regard to monetary claim, l ed to the enactment of statutory provisions making available to the defendant th e remedy of set-off, which was designed by allowing set off in actions at law to supersede or obviate the necessity of a resort to bills in equity for that purp ose. The legal defense of set off was, thus, introduced to prevent the unfair si tuation, whereby a person (\Party A\) who owed money to another (\Party B\) coul d be sent to debtors prison despite the fact that Party A also owed money to Par ty B. By allowing set off to be pleaded along with written statements, the law a llowed both parties to defer payment until their respective claims have been hea rd in court. Upon judgment, both claims are extinguished and replaced by a singl e net sum (e.g. If Party A owes Party B Rs.100/- and Party B owes Party A Rs.105 /-, the two sums are set off and replaced by a single obligation of Rs. 5/- to b e payable by Party B to Party A). At times, ’cross actions’ came to be referred to as ’cross suits’, because the terms, suit and action, became, in course of t ime, interchangeable terms, as may be noticed from the judicial pronouncement no ted below. 14. ’Action’ and ’suit’ are often synonymous, (See Hall Vs. Bartlett, N. Y., 9 Barb. 297, 300, citing Weston Vs. City of Charleston, 27 U. S. 449, 464, 2 Pe t. 449, 464, 7 L. Ed. 481; Miller Vs. Rapp, 34 N. E. 125, 126, 7 Ind. App. 89). The word ’suit’, in legal nomenclature, is generic and applies to any proceeding in a court of justice in which a plaintiff pursues a remedy, whether at law or in equity, being broader than the word ’action’, which is applied exclusively to matters at law. (See Syracuse Plaster Co. Vs. Agostini Bros, Building Corporati on, Sup. , 7 N. Y. S. 2d. 897, 900). Though the legislation abolished the common law distinctions between suits and actions and did away with the name suits, a ’suit’ now is either an action or a proceeding in the nature of an action in cou rt (See Milwaukee Light, Heat and Traction Co. , 125 N. W. 903, 905, 142, Wis, 4 24, 27 L. R. A. , N. S. , 567, 20 Ann. Cas. 707 ). The words ’suit’ and ’action’ are, sometimes, used synonymously. (See Throp Vs. Rutherford, 43 P. 2d 907, 910 , 150 Or. 157). The words ’action’ and ’suit’, as used in statutes of limitation , are generally synonymous (See Whitfield v. Burrell, 118 S. W. 153, 156, 54 Tex . Civ. App. 567; Jellison Vs. Swan, 74 A. 920, 922, 105 Mc. 356). In legal sense , ’action’, ’suit’, and \cause,\ are convertible terms. (See Ex parte Milligan, 71 U. S. 2, 4 Wall, 2 1s L. Ed. 281 ). Tillamook County v. Wilson River Road Co. , 89 P. 958, 959, 49 Or. 309, citing Bonv. Law Dict. ; And, Law Dict. : Messeng er Vs. Board of Com’rs of Converse County, 117 P. 126, 130, 19 Wyo, 309. 15. Thus, the term ’cross suit’ or ’cross action’ has essentially a bearing on the term set off. What is, now, necessary to note is that counter-claims evol ved as a concept, because counter-claims, with respect to property rights, were not contemplated in the days of origin of the concept of ’set off’. Even today , the concept of set off applies to money claims, though a counter-claim can be not only for a money claim, but it can be for other corporeal or incorporeal rig hts as well. Since the origin of counter-claim lies in the concept of set off, counter-claim too came to be treated at par with ’cross suit’ or ’cross action’. 16. What may, now, be noted is that the provisions for counter-claim did not exist in the Code of Civil Procedure, 1908, which, for the first time, re-arran ged the provisions of the Code of Civil Procedure, 1882, into two parts, namely, the body of the Code and the Schedule. In the Code of Civil Procedure, 1908, in order to meet the needs of incorporating a claim for set off by the defendant i n a suit for recovery of money, the part, which contained the Schedule, made pro visions for set-off in the form of Order VIII Rule 6, which exists even today. 17. As the provisions of set off, which Order VIII Rule 6 embodies, would ha ve an important bearing on the understanding of the law of counter-claim, Order VIII Rule 6 is reproduced below: 6. Particulars of set-off to be given in written statement: (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff ’s demand any ascertained sum of money legally recoverable by him from the plain tiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and b oth parties fill the same character as they fill in the plaintiff’s suit, the de fendant may, at the first hearing of the suit, but not afterwards unless permitt ed by the Court, present a written statement containing the particulars of the d ebt sought to be set-off. (2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. 18. A careful analysis of what Order VIII Rule 6 embodies would show that wh en, in a suit for recovery of money, instituted against him, the defendant too h as his own claim for recovery of money against the plaintiff, the defendant may, in such a suit for recovery of money, instituted against him, make his claim to set-off by ascertaining such amount as may be legally recoverable by him from t he plaintiff. 19. Thus, instead of relegating the defendant to the position of a plaintiff by making him institute a separate suit for recovery of claim of money, which h e may have against the plaintiff, the law provided, in the form of set-off, adju dication of the claim and counter-claim between the