IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 296/2005 Reserved on:28.7.2010 Decided on: 17.8. 2010 ________________________________________________ Jag Mohan Singh and another. …Appellants. Versus Vikas Verma and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Harmeet Singh, Advocate vice Mr. Bimal Gupta, Advocate. For the Respondents :Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for respondent No.1. Mr. Lovneesh Kanwar, Advocate for respondent No.3. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 31.3.2005 passed by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No.47-N/13 of 2003. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) instituted a civil suit 1 Whether reporters of the local papers may be allowed to see the judgment? Yes No. 53/1 of 2002 in the court of Senior Sub Judge, Sirmaur District Nahan for injunction restraining the defendant-respondent (hereinafter referred to as ‘the defendant’ for convenience sake) from interfering with the possession of the plaintiffs and proforma defendants over the suit land comprised in Khata Khatauni No. 93/219, Khasra No. 1002/767, Pattai Dadahu, measuring 1-3-15 bighas situated in village Chuli Dadahu, Tehsil Nahan, District Sirmaur. It was further alleged that the defendant was a complete stranger to the land and the land was situated at village Dadahu on road side and, therefore, was a valuable piece of land. On 20.3.2002, defendant tried to raise construction on the suit land. Defendant filed a detailed written statement to the plaint filed by the plaintiffs. It was pleaded by him that he has purchased two biswas of land from one Smt. Renu Bala in the year 2000 vide sale deed No. 67 of 2000. The suit land had been purchased by Smt. Renu Bala from Sukdi in the year 1993 vide sale deed No. 70 of 1993. Tatima was prepared. The land sold was situated on the road side near K.N.D.C. road in front of P.W.D. Rest House. Smt. Renu Bala after purchasing the land fixed barbed wire around the plot. When defendant purchased the land from Smt. Renu Bala, he constructed a shed thereon and inducted one Raj Kumar as tenant. It has also been alleged that a mistake had occurred in the tatima in which land sold was shown as Khasra No. 766/377 whereas actual khasra No. was 767/377. Due to this mentioning of wrong khasra number in the tatima, error also crept in the sale deed and subsequent revenue record. Defendant also filed a counter-claim for a decree of rectification of sale deed No.70 of 1993 and 67 of 2000 on 7.6.2002 and also prayed for injunction to restrain the plaintiffs from interfering with his possession. The correction application was made by him to the Assistant Collector IInd Grade, Dadahu and the application was pending when the written statement-cum-counter claim was filed. It was also pleaded by the defendant that property so purchased by him presently being described as Khasra No. 1002/767/377/1 and had wrongly been mentioned by Khasra No. 999/766 in the sale deed which Smt. Renu Bala made in his favour. Plaintiffs did not file any reply to the counter-claim preferred by the defendant. The trial court dismissed the civil suit No. 53/1 of 2002. However, the counter-claim of the defendant that he is owner in possession of two biswas of land bearing khasra No.1002/767/377/1 by virtue of sale deed from Smt. Renu Bala to him and as shown in the tatima Ex. D-3 (though it has been wrongly described as Khasra No. 766/377/1, which should be read as 767/377/1) was decreed with costs. Plaintiffs were restrained from interfering with his possession. Revenue Record was directed to be corrected and the defendant was directed to be shown as owner of the land bearing khasra No. 767/377/1 as shown in tatima Ex. D-3, which was directed to be form part of decree. Plaintiffs preferred an appeal against the judgment and decree dated 30.7.2003 before the learned Additional District Judge, Sirmaur at Nahan. Learned Additional District Judge dismissed the appeal on 31.3.2005. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: “Whether the trial Court and the first Appellate Court erred in law and facts in holding that the defendant No.1 was the owner in possession of 2 biswas of land comprised in Khasra No. 1002/767/377/1 in the terms of Tatima Ex. D-3 on record.” 3. Mr. Harmeet Singh has strenuously argued that both the courts below have erred in law by dismissing the suit and allowing the counter-claim preferred by the defendant. 4. Mr. Rajnish K. Lal has supported the judgments and decree passed by both the learned courts below. 5. I have heard the learned counsel for the parties and perused the record carefully. 6. PW-1 Jagmohan has deposed that the land in suit was owned by him and his brother and its khasra number was 767 and the area was two biswas. Ex.P-1 is the copy of jamabandi for the year 1996-97. Sukdi has been shown as owner of certain land, including land shown by Khasra No. 766/377 measuring 0-3 bighas described as ‘Gair Mumkin Pathar’ and Khasra No. 767/377 measuring 1-6-0 bighas described as ‘Nakabil’. Ex.P-3 is copy of jamabandi for the year 1996-97. In this jamabandi, Smt. Renu Bala has been shown as owner of two biswas of land comprised in Khasra No. 999/766. Ex. P-6 is the copy of mutation order, which was attested in favour of defendant. Ex.P-7 is the sale deed, which is executed by Renu Bala in favour of the defendant and the sale deed which is executed by Sukdi in favour of Renu Bala is Ex.P-8. Ex.P-9 is the copy of mutation order, which was made in favour of Renu Bala. 7. DW-1 Vikas Verma has deposed that he has purchased land from Renu Bala vide sale deed Ex.P-7. He has inducted one Sh. Raj Kumar as tenant after constructing a shed. He further stated that Renu Bala had purchased this land from Sukdi vide sale deed Ex.P-8. He came to know that a mistake has occurred in preparation of tatima in which Khasra No. 766 had been written instead of khasra No. 767. These khasra numbers were the parts of Khasra No. 377. Defendant has also described the location of the land, which according to him, was on K.N.D.C near P.W.D. Rest House. 8. DW-2 Naresh Kumar has produced the record. DW-3 is Jai Gopal, Patwari, who has prepared tatima and had committed the error in mentioning wrong Khasra number in tatima. According to him, the land in dispute is situated near Rest House. The land of one Anita was also situated nearby. He has further stated that he prepared the tatima of the land, i.e. Ex.D-3. It was the same tatima which was annexed with the sale deed Ex.P-8. He further deposed that the tatima Ex. D-3 fits in khasra No. 767 only, but due to oversight, he mentioned khasra No. 766/377. 9. DW-4 Upender Kumar is the Patwari from whom Assistant Collector IInd Grade invited the report on the application preferred by the defendant. The report is Ex.D-5/A. It is reiterated therein that the tatima, in fact, was part of land khasra No. 767/377 and it fits in that khasra number only. He has also proved copy of Shajra Ex. D-6. 10. DW-5 Kailash Chand is another Patwari. He has deposed that tatima, which was attached with sale deed Ex.P-7 was prepared by him. The copy of tatima is Ex.D-7. He also deposed that the land shown in tatima is near the P.W.D. Rest House. He was not cross-examined. 11. DW-6 Sohan Lal is the father-in-law of Renu Bala and uncle of Anita. He has deposed about the location of the land. According to him, land in suit is situated near the Rest House and adjoining to this land is the land of his niece Anita. 12. DW-7 Raj Kumar is the tenant, who was inducted by the defendant. He has also described the location of hut. 13. Accordingly, in view of the discussion made hereinabove, it can safely be concluded that there was error in tatima which has led to further error in sale deed and revenue record. It has also come in the evidence that the parties were put in possession and as of today they are keeping the same. 14. Mr. Harmeet Singh has strenuously argued that the counter- claim preferred by the defendant was not maintainable in the present form and no relief could be granted to him in the suit preferred by the plaintiff. Mr. Rajnish K. Lal has drawn the attention of the Court to order 8 rule 6-A of the Code of Civil Procedure. Mr. Harmeet Singh has also argued that the relief sought for by the defendant was not based on the same cause of action on which the plaintiffs have filed the same. Mr. Rajnish K. Lal has also argued that the plaintiffs have not filed any reply to the counter-claim as per order 8 rule 6-E of the Code of Civil Procedure. 15. Their Lordships of the Hon’ble Supreme Court in Jagmohan Chawla and another versus Dera Ratha Swami Satsang and others, AIR 1996 SC 2222 have held that in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable. Their Lordships have also held that 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. Their Lordships have further held that 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 independent cause of action in respect of any claim that would be the subject matter of an independent suit. Their Lordships have held as under: “5. The question, therefore is; whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? It is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6A(1) provides that a defendant in a suit may, in addition to his right of pleadings 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 damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplifies that 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. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunila Kabarwala, (1964) 2 SCR 567 : (AIR 1964 SC 11), had come to consider the case of suit and cross suit by way of counter claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partner in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court-fee as plaint. They also sought a prayer to treat the counter-claim as a cross suit. The trial Court dismissed the suit and the counter-claim. On appeal, the learned single Judge accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be counter-claim for settlement as a cross suit. The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, C.P.C. but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right to the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own 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 of 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 thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, 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. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being on independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar v. State of Madhya Pradesh, (1987) 3 SCC 265 : (AIR 1987 SC 1395), where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal. 16. Accordingly, in view of the law laid down by their Lordship of the Hon’ble Supreme Court, counter-claim could be filed by the defendant. A counter-claim is a cross-action and the civil suit and the counter-claim are unified proceedings. 17. The expression “counter-claim” has been explained in Code of Civil Procedure by C.K. Thakker, 2005 Edition, Voume-3 page 673 as under: “Counter-claim” may be defined as “a claim made by the defendant in a suit against the plaintiff. It is a claim independent of, and separable from, the plaintiff’s claim which can be enforced by a cross-action. It is a cause of action in favour of the defendant against the plaintiff.” 18. It is also well settled by now that a counter-claim is distinct, separate and independent. It is not merely a weapon of defence pure and simple like a set-off but also a weapon of offence and enables a defendant to enforce a claim against a plaintiff as effectively as an independent suit. 19. The matter is also required to be considered from another angle. The plaintiffs have not chosen to file any reply to the counter-claim preferred by the defendant Vikas Verma. The plaintiffs were required to file reply to the counter-claim as per order 8 rule 6-E, which reads as under: “6-E. Default of plaintiff to reply to counter-claim. – If the plaintiff makes default in putting in a reply to the counter- claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter- claim made against him, or make such order in relation to the counter-claim as it thinks fit.” 20. What order 8 rule 6-E ordains is that if the plaintiff fails to file reply to the counter-claim set up by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter- claim made against him, or make such order in relation to the counter- claim as it thinks fit. Defendant Vikas Verma has led cogent and convincing evidence to prove his counter-claim, as discussed hereinabove. Since he has established his counter-claim in a suit instituted by the plaintiffs, he had a right to get decree against the plaintiff, as ordered by the learned trial court and upheld by the first appellate court. 21. Accordingly, in view of the discussion made hereinabove, there is no merit in the present Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 17.8. 2010. *awasthi*