IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 569 of 2009 Judgment reserved on : 24.2.2010. Date of decision : 2.3.2010. Nirmala Devi and others …Petitioners. Versus Dhian Singh and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the petitioners : Mr. Ashok Kumar Sood, Advocate. For the respondents : Mr. S.R.Sharma, Advocate for respondents No.1 and 3. Mr. Devender Sharma, Advocate, vice Ms. Sarita Dogra, Advocate for respondent No.2. __________________________________________________________ Kuldip Singh, Judge The defendants No.1, 4 and 5 have filed this petition in which they have assailed order dated 13.3.2009 passed by the learned Civil Judge (Jr.Division), Dehra rejecting the application of defendants No.1 and 4 to strike out the counter claim of defendant 3. The petitioners No.1 to 3 were defendants No.1, 4, 5 respectively in the suit. The respondents No.1 to 3 were plaintiff, defendants No.2, 3 ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respectively in the suit. 2. The plaintiff had filed a suit for declaration that he and defendants No. 2 to 4 are joint owners in possession of the suit property in equal shares and are entitled to remain as such in equal shares. The entries in remarks column showing defendant No.1 as owner of the same on the basis of mutation of inheritance No. 389, 538 and 377 are liable to be set-aside. The land comprised in khasra No. 263 measuring 0-00-50 Hects. Vide jamabandi 1999-2000 situated at Mohal and Mauza Dhaliara and the shop situated thereon is owned and possessed by the plaintiff and defendants 2, 3 in equal share. The land comprised in Khasra Nos. 635, 666, 667,668, 1517/680, 671, 672, 673, 724, measuring 0-25-11 Hects. vide jamabandi 2003-04 in Mohal Gharthedu, Mauza Dhaliara and the house is owned and possessed by plaintiff and defendants No. 2 to 4 in equal shares. The entries showing defendant No.3 exclusive owner in possession of the same are wrong, null and void and deserve to be set-aside. The mutations of sale and gift do not affect the rights and title of the plaintiff to inherit the suit property after the death of Babu Ram, who died intestate on 26.1.2006 leaving behind plaintiff and defendants No. 2 to 4 as his only heirs. Babu Ram had not executed any will, sale deed and gift deed during his life time. The defendants in connivance with each other have put up false and fabricated will in favour of defendant No.1, false and fabricated gift deed dated 24.2.2004 and sale deed dated 24.1.1999 in favour of defendant No. 2. The plaintiff being the son has a right by birth and has inherited all the properties held by 3 Babu Ram after his death alongwith his brothers and sister in equal shares and he is entitled to continue as such and the mutations attested in favour of defendants 1, 2, 4 and 5 are wrong and illegal. A prayer for permanent prohibitory injunction restraining the defendants from alienating, encumbering or changing the nature of the suit land and causing interference in the joint ownership and possession of the plaintiff has also been made. In the alternative, suit for joint possession of the suit property was put-forth in case defendants succeed in dispossessing the plaintiff. 3. The suit has been contested by the defendants No.1 and 4 by filing joint written statement. They have pleaded that deceased Babu Ram had executed a legal and valid will during his life time on 25.12.2005 in favour of defendants No.1 and 4. The property in suit after the death of Babu Ram as per his will has been mutated in favour of defendants No.1 and 4, who are in possession as joint owners to the exclusion of other natural heirs. They have stated that sale deed (sic will) dated 20.1.1999 is not fictitious. Similarly gift deed dated 28.1.2004 and gift deed dated 24.2.2004 are legal and valid. The defendants No.1 and 4 in the written statement had prayed for dismissal of the suit. 4. The defendant No.3 has contested the suit by filing written statement, he has also filed counter-claim in the suit. He has submitted that Babu Ram during his life time had executed registered will dated 20.1.1999 bequeathing land comprised in khasra No. 667 measuring 0-01-36 hects. equally in favour of defendants No.2 and 3 where defendant No.3 has built a house. Babu Ram had bequeathed 4 land comprised khasra Nos. 724, 723, 671, 672, 666 in favour of defendant No.3 and defendant No.2 whereas khasra No. 635 has been bequeathed in favour of defendants No.5, 2 in equal share. The remaining estate was bequeathed by Babu Ram in favour of his three sons and daughter namely plaintiff and defendants No.2 to 4 in equal share by virtue of will dated 20.1.1999. The estate of deceased Babu Ram has devolved on plaintiff and defendants No.2 to 4. The defendant No.2 in collusion with defendant No.1 has prepared a false and fictitious will and on that basis got attested mutations No.389, 538, 377 in favour of defendant No.1 falsely when defendant No.3 was not in the village. So called will in favour of defendant No.1 is false, fictitious. The validity of gift deed dated 24.2.2004 is denied by defendant No.3. Babu Ram had never executed any sale deed or gift deed. 5. The defendant No.3 has set up a counter-claim and prayed a decree to the effect that counter claimant (defendant No.3), plaintiff, defendant No.2, defendant No.4 and defendant No.5 are joint owners in possession of land as per prayer in the counter claim on the basis of will dated 20.1.1999. The entries showing defendant No.1 as owner of the same are wrong. The alleged will in favour of defendant No.1, sale deed dated 24.1.1999 and gift deed dated 24.2.2004 are false and fabricated. Babu Ram had executed only one genuine will dated 20.1.1999 and the parties have succeeded to the estate of Babu Ram on the basis of will dated 20.1.1999. 6. The defendants No.1 and 4 had filed an application under Section 151 C.P.C. to strike out the counter claim filed by 5 defendant No.3. It has been alleged that defendant No.3 has taken counter-claim on the basis of will dated 20.1.1999 against the plaintiff. The will dated 20.1.1999 and counter claim shall affect the rights of defendants No.1 and 4. The defendants No.1 and 4 have no right to file written statement against the counter claim of defendant No.3 as the counter claim can only be taken against plaintiff and not against the co-defendants. The counter claim is thus not maintainable. The defendant No.3 is at liberty to file separate suit. A prayer has been made that counter claim of defendant No.3 on the basis of will dated 20.1.1999 may be ordered to be struck out from the pleadings. 7. The application for striking out the counter-claim was opposed by defendant No.3. It was submitted that counter claim is maintainable and counter-claimant has no objection to provide chance to co-defendants to file written statement. The learned trial Court dismissed the application of defendants No.1 and 4 for striking out the counter claim of defendant No.3. The defendant No.3 was directed to file amended memo of parties and array plaintiff as well as remaining co-defendants as defendants in the counter claim. The learned trial Court has also ordered filing of written statement to the counter claim of defendant No.3. 8. The learned counsel for the petitioners has submitted that Rule 6 of Order 8 provides for exclusion of counter claim at the instance of plaintiff on the grounds stated in Rule 6 C but there is no provision in the Code to exclude the counter claim at the instance of co-defendants. He has submitted that this is so as Code does not contemplate counter claim by defendant against co-defendants. He 6 has submitted that in these circumstances, defendants No.1 and 4 have filed application under Section 151 C.P.C. for striking out the counter claim filed by defendant No.3 against plaintiff and other co- defendants. 9. The learned counsel for the petitioners has relied Kulwant Singh Vs. Gurcharan Singh, 2003 (1) S.L.J. 237, Rohit Singh and others Vs. State of Bihar (now State of Jharkhand) and others (2006) 12 SCC 734, International Society for Krishna Consciousness (ISKCON), Mumbai vs. International Society for Krishna Consciousness (ISKCON), Bangalore 2007 (4) CCC 601 and Hari Singh Kapur Vs. Ajit Kumar Kapur and others 2008 (3) S.L.J. (P.& H.) 2075 in support of his submissions that the counter claim filed by defendant No.3 against co-defendants is not maintainable. Rule 6 A of Order 8 provides counter-claim by defendant which is as follows:- “(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. (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. 7 (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaintiff”. In the present case, there is no denial of the fact that defendants No.1 and 4 have laid counter-claim against the plaintiff in the suit but counter-claim is also against other co-defendants. The question is whether such counter-claim which is against plaintiff as well as other co-defendants is maintainable. 10. The Rule 6A of Order 8 was inserted in the Code by C.P.C. (Amendment Act 1976 104 of 1996). The purpose of adjudication of the counter-claim in the same suit is to avoid multiplicity of litigation. The objection of defendants No.1 and 4 to the counter- claim of defendant No.3 is only to the effect that the counter-claim may not be tried in the present suit but they have no objection if the defendant No.3 files a separate suit against defendants No.1 and 4 for reliefs prayed by him in the counter-claim. The other objection of the petitioners is that in the counter-claim of defendant No.3, the co- defendants shall not be entitled to file any written statement to the counter-claim and, therefore, their rights will be prejudiced. 11. There is no bar in the Code for filing a counter-claim by a defendant against plaintiff in which relief is also prayed against co- defendants. It is not a case where the counter-claim has been filed only against co-defendants excluding the plaintiff. In Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others (1996) 4 SCC 699, it has been held by the Supreme Court, “In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own 8 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 of 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 that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee therein. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, 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”. 12. In Kulwant Singh (supra), a learned Single Judge has held that he has no hesitation in rejecting the argument that 9 defendant can set up a counter-claim against a co-defendant because it would unnecessarily cause embarrassment, complication and confusion. The question that a defendant can lay counter claim against plaintiff and co-defendants was not directly before the Court and decided. 13. In International Society for Krishna Consciousness, Mumbai (supra), the question came up before the Court in two writ petitions was with respect to partly allowing and partly rejecting the application under Order 8 Rule 6C C.P.C. This question was not before the Court that a counter-claim by a defendant against plaintiff and co-defendants is maintainable or not. Therefore, International Society for Krishna Consciousness, Mumbai, is of no help to the petitioner. 14. The learned counsel for the petitioners has relied Rohit Singh (supra) on the point that in that case counter-claim by defendants against co-defendants was not allowed. There is no denial of the fact that the counter-claim was not allowed but that was on the facts of that case. The Supreme Court in para 21 of the report has held as follows:- “Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against the co-defendants in the suit. But a counterclaim directed solely against the co-defendants cannot be maintained. By filing a counterclaim the litigation cannot be converted into some sort of an interpleader suit. Here, Defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff 10 and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against Defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counterclaim, in our view, should not have been entertained by the trial court”. The Supreme Court has held that a counter-claim has necessarily to be directed against the plaintiff in the suit, though incidently or along with it, it may also claim relief against the co-defendants in the suit. But a counterclaim directed solely against the co-defendants cannot be maintained. 15. In Hari Singh Kapur (Supra) the counter claim was filed by the petitioner against the plaintiff and impleaded seven other persons as co-defendants. On those grounds, the counter claim was not permitted to be taken. But in para 11 of the report, it has been held that bare reading of provisions of Order 8 Rule 6-A C.P.C. leaves no manner of doubt that by way of counterclaim it is permissible to raise a claim only against the plaintiff or who are party to the suit and not against stranger, as is sought to be contended. Thus, in this judgment, it has been held that counter claim lies against plaintiff or who are party to the suit. In the present case defendants No.1 and 4 are admittedly parties in the suit. Therefore, Hari Singh Kapur (supra) supports the case of defendant No.3 that counter claim lies against plaintiff and co- defendants. 16. In Sarojini Amma and others Vs. Dakshyani Amma and others 1996 A I H C 5061 (KER), the facts were that in the suit 11 filed by respondents against petitioners in the written statement filed by the petitioners they denied the allegations and also made a counter claim against the respondents, who are the plaintiffs as also respondents 3 and 4, who were impleaded in the counter claim since they were the custodians of the poramboke property. The Court below considered the maintainability of the counter-claim and observed that it cannot be convassed against persons, who are not parties to the suit-against total strangers to the suit and accordingly found that the counter claim was not maintainable as against respondents 3 and 4, whose names were ordered to be struck out. It has been held in para 5 as follows: “The main purpose of setting up a counter-claim is to prevent multiplicity of proceedings between the parties. As observed already, it has to be treated as a plaint and is governed by the rules applicable to it. It has to contain the particulars as in Order VII, Rule 1, CPC among other requirements. Indeed “plaint” has not been statutorily defined. But it should contain necessary and relevant facts constituting the cause of action. The counter-claim need not necessarily be confined to the claim made against the plaintiff, and if for its effective adjudication besides the plaintiff, other interested persons should be made parties, they could be impleaded, if the court is satisfied that without them the adjudication will be incomplete. Order VIII Rule 6A, CPC does not say as to who shall be parties to the counter-claim. It appears to me the provisions as to joinder of parties under Order 1, Rule 10, CPC would also apply to counter-claim, no doubt, subject to the condition that persons impleaded are necessary and proper parties for an effective adjudication of the questions involved. The submission that Order VIII, Rule 6A does not enable the participation of persons who are not already parties to the suit is difficult to accept”. 17. In the present case, the counter-claim is not solely against the co-defendants. It appears that necessity to file counter- 12 claim on behalf of defendant No.3 has arisen as the plaintiff started ball rolling by filing the suit claiming right to the estate of Babu Ram. The defendant No.3 has right to defend the suit and raise counter claim against plaintiff on the basis of his defence. It is a different matter that counter claim so raised by defendant No.3 against plaintiff may incidentally also affects the co-defendants and therefore, by way of counter claim defendant No.3 is seeking relief against the co- defendants also. In view of Rohit Singh (Supra) such counter-claim against co-defendants is maintainable. 18. In the application for striking out the counter claim, there is no averment that the counter claim of defendant No.3 will embarrass the trial or unnecessarily complicate the litigation. The only ground for striking out the counter claim of defendant No.3 pleaded in the application is that the counter claim would affect the rights of defendants No.1 and 4 and they shall have no right to file written statement to the counter claim. The learned Civil Judge while rejecting the application for striking out the counter claim of the defendant No.3 has directed the defendant No.3 to file memo of parties and array plaintiff as well as remaining defendants as defendants in the counter claim and they have been given opportunity to file written statement to the counter claim of defendant No.3. Thus, the apprehension of defendants No.1 and 4 that they shall have no right to file written statement to the counter claim of defendant No.3 has set at rest by the learned Civil Judge. Thus, taken from any angle, the learned counsel for the petitioners has failed to make out any case for interference. 19. No other point was urged. 13 20. The result of the above discussion, the petition fails and is accordingly dismissed. The parties through their counsel are directed to appear before the trial Court on 23.3.2010. The record of the trial Court be sent immediately so as to reach before the date fixed. March 2, 2010. ( Kuldip Singh ), (GR) Judge.