HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.484 of 2006 (M/S) Jagjeet Singh & others … Petitioners Vs Additional District Judge / 1st FTC Roorkee, District Haridwar & others… Respondents Hon’ble Tarun Agarwala, J. Heard Mr. Harsh Vardhan Shah, the learned counsel for the petitioners and Mr. Sharad Sharma, the learned senior counsel for the respondent no.2, Mr. Sidhartha Singh, the learned counsel for the respondent no.3 and Mr. Sudhir Kumar, the learned brief holder for the respondent no.1 on the merits of the case. The plaintiff Darshan Kaur executed a sale deed dated 07.02.2002 in favour of Teji Bai and, subsequently, instituted a suit for the cancellation of the said sale deed. During the pendency of the suit, the petitioners who are the sons of Darshan Kaur filed an application for impleadment. Initially, this application was rejected against which the petitioners preferred a writ petition which was allowed and a direction was issued to the trial court to implead the petitioners as contesting defendants in the suit. Accordingly, the petitioners were arrayed as respondent defendant No.4 to 7 in the suit. The petitioners accordingly filed the written statement in which a counter claim was also filed as provided under Order VIII Rule 6A of the Code of Civil Procedure (hereinafter referred to as C.P.C.). In the counter claim, the petitioners contended that they are also the co-owners of the property in question since it was purchased by their father and that their mother had no right or authority to sell the property. The petitioners accordingly prayed that a declaration be issued that they are the co-owners of the property in question and that the property be partitioned by metes and bounds. -2- The contesting defendant i.e. Teji Bai filed a written statement to the counter claim filed by the petitioners denying the allegation and further contending that this was a collusive counter claim in connivance with their mother, i.e., plaintiff. The objection / written statement filed by Teji Bai was resisted by the petitioners contending that a co-defendant, namely, Teji Bai could not file any written statement to the counter claim of the petitioners, who itself was one of the defendant in the suit filed by the plaintiff Darshan Kaur. The trial court, after considering the matter and upon hearing the parties, allowed the written statement of Teji Bai to be kept on record. The petitioners, being aggrieved by the said order, has filed the present writ petition. The short contention raised by the learned counsel for the petitioners is, that a co-defendant cannot file the written statement and consequently, the objections / written statement / counter claim filed by Teji Bai cannot be taken on record. In support of his submission, the learned counsel placed reliance upon the decisions of the Supreme Court in Ramesh Chand Ardawatiya Vs. Anil Panjwani 2003 (7) SCC 350 and Rohit Singh & others Vs. State of Bihar (Now State of Jharkhand) 2006 (12) SCC 734, wherein it was held that a co-defendant cannot file a counter claim against another co- defendant in a suit. On the other hand, the learned counsel for the Teji Bai submitted that her valuable right was being affected by this counter claim and, being a defendant, had a right to file a written statement under Order VIII Rule 9 of the C.P.C. The learned counsel further contended that the objections so raised by the contesting defendant was not a counter claim but were such objections being brought on record which came into existence during the pendency of the suit. Mr. Sharad Sharma, the learned -3- senior counsel for the Darshan Kaur has supported the stand of the petitioners. To test the argument of the learned counsel for the rival parties, it would be appropriate to consider the provision of Order VIII Rule 6A of the C.P.C. For facility, the said provision is extracted hereunder:- “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. (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. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.” A perusal of the aforesaid provision which was added in the year 1977 indicates that in a suit where there are two parties, the defendant instead of filing another suit against the plaintiff is -4- permitted to file a counter claim and such counter claim would be treated as a plaint for all practical purposes as has been clearly specified under sub-clause (4) of Rule 6A Order VIII of the C.P.C. Once a counter claim is filed the defendant becomes the plaintiff and, therefore, all the interse controversies are decided together so that the matter is resolved once and for all. The provision of Order VIII Rule 6A of the C.P.C. clearly indicates that a defendant in a suit can file a counter claim against the plaintiff only. The defendant cannot file a counter claim against a co- defendant and that is precisely what the Supreme Court has held in Rohit Singh’s case (supra). In the present case, the learned counsel for the petitioners contend that the objections filed by the defendant Teji Bai is in fact a counter claim and, consequently, a counter claim filed by the petitioners who is defendant cannot be claimed against a co- defendant. The court has perused the objections raised by Teji Bai to the counter claim filed by the petitioners and the court finds that the objections are nothing else, but, such averments being brought on record as provided under Order VIII Rule 9 of the C.P.C. The objections of Teji Bai is in the form of a written statement and is not a counter claim. A question, which arises for consideration is, that whether in a counter claim, a co-defendant could file a written statement or objection to the counter claim or not. The answer is not far to see. Let us take an example, namely, that the petitioners, who have filed a counter claim, in fact had filed a separate suit praying that their mother had no right to sell the property to Teji Bai since she was not the exclusive owner and was only a co-owner. In that view of the matter, Teji Bai would have been arrayed as a necessary defendant and, once arrayed as a defendant, Teji Bai would have filed her written statement. In the light of the -5- provision of Order VIII Rule 6A of the C.P.C., a counter claim is treated as the plaint and, consequently, Teji Bai, being a defendant, was entitled to file her written statement. The contention of the petitioners that the objections raised by Teji Bai was a counter claim is patently erroneous. No such relief has been sought by Teji Bai in the objection nor anything to that effect has been pointed out. The said objection is nothing but a pleading under Order VIII Rule 9 of the C.P.C. In the light of the aforesaid, the court does not find any merit in the writ petition. The writ petition fails and is dismissed. Registry is directed to send a certified copy of this order to the trial court within a week. (Tarun Agarwala, J.) Dated 12.12.2011 LSR