1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5049 OF 2008 1) Syed Gufran Aazam S/o. Syed Abdul Kadir, Age-27 years, Occu-Business & Agril. R/o.Mominpura, Georai, Tq.Georai, Dist : Beed 2) Syed Imran Aazam S/o.Syed Abdul Kadir, Age-24 years, Occu-Business, R/o.Mominpura, Georai, Tq.Georai, Dist : Beed 3) Syed Irfan Aazam S/o. Syed Abdul Kadir, Age-22 years, Occu-Education, R/o.Mominpura, Georai, Tq.Georai, Dist : Beed. PETITIONERS VERSUS 1. Syed Khaleel Ahmed S/o.Syed Abdulla Age-Major, Occu-Agril. R/o.Georai, Tq.Georai, Dist : Beed 2. Syed Abdul Khaleque S/o.Syed Abdulla, Age-54 years, Occu-Business, R/o.Momin Galli, Georai, Tq.Georai, Dist : Beed RESPONDENTS Mr.B.A.Dhengle, advocate for petitioner. Mr.S.A.G.Qureshi, advocate for respondent no.2 Respondent no.1 absent even though duly served. 2 (CORAM : A.V.POTDAR, J.) DATE : 10/06/2009 ORAL JUDGMENT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioners/original plaintiffs are challenging the order passed below Exh.1 and 46 passed in RCS No. 291 of 2007, vide order dated 23/07/2008. 2. Rule. 3. Considering the small legal point involved in the present writ petition, by consent of the parties rule made returnable forthwith and at the stage of admission itself. Writ petition is taken up for final hearing. 4. The factual matrix which gave rise to file the present writ petition can be summarized as under. The present petitioner who is the original plaintiff in RCS No.291/2007 on the file of Joint Civil Judge, J.D. Gevrai, has filed suit for declaration and injunction that the decree passed in RCS No.37/2003, dated 07/09/2003 to be declared null and void. The cause of action to the suit is shown in para no.15 of the plaint as arose on 04/11/2007 when the respondent defendants obstructed their possession in the suit property. After service of suit summons, the defendants respondents appeared in the suit and filed their written statement on 3 22/04/2008. Within meantime, the second respondent, the defendant have also filed application for temporary injunction against the petitioner plaintiff under the provisions of order 39 rule 1 and 2 of CPC. They have contested the suit claim by filing written statement. It further appeared that when the suit ripe up for hearing of the application of injunction application on 16/07/2008, an application was given by the petitioner plaintiff that for some technical reasons, they do not want to proceed with the suit. This application is at Exh.46. It further appeared that thereafter on 18/07/2008, the second respondent filed counter claim in the suit in which cause of action to the counter claim is shown as arose on 09/04/2008. It appears that the application filed by the petitioner vide Exh.46 as well as injunction application filed by the second respondent defendant were disposed of by common order dated 23/07/2008 by which the petitioner plaintiff was allowed to withdraw the suit, but the order passed in the temporary injunction application vide Exh.20 to continue till the disposal of the counter claim on merit. 5. Being aggrieved by the said order not about the continuation of the temporary injunction against the petitioner, but for continuation of the counter claim, the petitioner have approached this Court. 6. Heard Adv.Dhengle for petitioner, followed by the arguments of advocate Mr.S.A.G.Kureshi for the second respondent. Considering the legal submissions across the bar, the point required to be 4 considered whether the alleged counter claim filed by the second respondent, who is the second defendant in the suit whether can be treated as a counter claim to the suit filed by the petitioner plaintiff. Order 8 of the CPC speaks for written statement, set off and counter claim. Rule 6-A of order 8 speaks for counter claim by defendant while rule 6-B of order 8 speaks for counter claim to be stated. Order 8 Rule 6-A of CPC – (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. Order 8 Rule 6-Bof CPC - Counter claim to be stated – Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter- claim. 7. In the light of the above referred provisions under order 8 of 5 The CPC, the claim styled as a Counter Claim is always to be filed with the written statement and all the particulars which required to be pleaded in the plaint are to be pleaded in the counter claim as per the provisions of Rule 6-B of Order 8 CPC. The main requisite ingredient to treat the claim set up by the defendant in a suit filed by the plaintiff to be treated as a counter claim as contemplated under Rule 6-A of Order 8 CPC that this claim of the defendant/adversary party arises out of the claim or out of the cause of action on which the suit first filed by the plaintiff in the Court of Law. If the claim of the defendant is based not on the cause of action on which the plaintiff to the suit or proceeding have claimed accrual of his right but the cause of action to the claim of the defendant is based on totally different cause of action, then the defendant to the proceeding is at liberty to file the separate proceeding/suit to that effect for the redressal of his remedy. But if the claim of the defendant is set up or accrued his right totally on the different cause of action, then by virtue of the provisions under Sub Rule 6-A of Order 8, he can not do so or permitted to do so under Order 8 Rule 6-A of The CPC. 8. From the claim filed by the second respondent, who is the second defendant in the suit before the Trial Court, have filed this claim on 18/07/2008, i.e. after 4 months after he has filed his written statement. On perusal of the contents of the alleged counter claim, the cause of action to his counter claim arose on or about 09/04/2008. As against this the cause of action accrued in the suit filed by the petitioner to the suit is on 04/11/2007. Thus from the 6 facts, it is very clear that the cause of action to the suit and the cause of action to the alleged counter claim are not based on same cause of action. In the premise, the claim/pleadings of the second respondent treated as a counter claim by the Lower Court are not coming within the purview of Order 8 Rule 6-A of CPC. 9. In the last part of para no.5 of the order under challenge, it is observed by the Trial Court that whether these pleadings are to be treated as a counter claim or such a counter claim is maintainable need not necessary to consider at this stage. It is a settled principle of Law that if the claim set up by the defendant is treated as a counter claim, then in the premise merely because the suit is allowed to be withdrawn or the suit stands dismissed in default, the counter claim will not automatically dismissed or the proceedings of the counter claim will not automatically disposed of but will continue. In the premise, whether the pleadings submitted by the second respondent, who is second defendant before the Trial Court whether to be treated as a counter claim or not to be decided when the claim filed/the plaint filed by the plaintiff allowed to be withdrawn. If the issue is kept open whether the pleadings of the second respondent/second defendant in the Lower Court whether to be treated as a counter claim that area is kept opon, then according to the Court, this order itself is not maintainable in Law, it is without following the procedure of Law. Hence the order passed by the Lower Court about the claim filed by the second respondent/second defendant to be treated as a counter claim to continue is itself 7 against the provision of Law, hence to quashed and set aside. In the premise, the pleadings filed by the second respondent/defendant dated 18/07/2008 in the suit RCS No.291/2007 filed by the petitioner can not be termed as counter claim and to that effect the “counter claim to continue”. This order of the Lower Court required to be quashed and set aside and accordingly it is quashed and set aside. 10. Rule thus made absolute as indicated above and the writ petition stands disposed of accordingly with no order as to costs. (A.V.POTDAR, J.) khs/wp5049-08