@JUDGMENTTAG-ORDER
G. Rohini, J.@mdashThe revision Petitioner is the Plaintiff in O.S. No. 232 of 2005 on the file of the Court of the I-Addl. District Judge, R.R. District at L.B. Nagar, Hyderabad. This Civil Revision Petition is preferred under Article 227 of the Constitution of India aggrieved by the dismissal of I.A. No. 2161 of 2010 filed by the Plaintiff under Order 8 Rule 6C of CPC with a prayer to exclude the counter claim raised by the Defendant No. 2 in her written statement.
2. The facts, in brief, are as under:
The suit is filed for specific performance of the Agreement of Sale, dated 18.08.2003 allegedly executed by the Defendant No. 1/Respondent No. 1 herein in respect of the suit schedule property. The suit was initially decreed ex parte on 21.04.2006. However, I.A. No. 916 of 2006 filed by the Defendant No. 1 under Order 9 Rule 13 of CPC was allowed and the ex parte decree was set aside. Thereafter, the Defendant No. 1 filed a written statement denying the execution of the Agreement of Sale, dated 18.08.2003 in favour of the Plaintiff. It is claimed that the Defendant No. 1 who is the General Power of Attorney sold the suit schedule property to one B.V. Dhanalakshmi under a Registered Sale Deed, dated 13.10.2006 and that the possession of the suit schedule property was also delivered to the said vendee.
3. Having regard to the plea taken by the Defendant No. 1 that a Registered Sale Deed was executed in favour of one B.V. Dhanalakshmi in respect of the suit schedule property, the Plaintiff got impleaded the said B.V. Dhanalakshmi as Defendant No. 2. Thereafter the Defendant No. 2 filed a written statement with counter claim under Order 8 Rule 6A of CPC seeking delivery of vacant and peaceful possession of the suit schedule property to her and to direct the Plaintiff to pay damages at the rate of Rs. 20,000/-per month apart from arrears of Rs. 7,20,000/-. It was claimed by the 2nd Defendant that the 1st Defendant had executed an Agreement of Sale in favour of the General Power of Attorney-holder long back on 20.05.2001 and in pursuance thereof substantial amounts were paid to the Defendant No. 1 by the said General Power of Attorney-holder as well as the Defendant No. 2 and ultimately the Registered Sale Deed, dated 13.10.2006 was executed in favour of the 2nd Defendant and the possession of the suit schedule property was delivered to her. It was alleged that subsequently the possession of the suit schedule property was taken by the Plaintiff unlawfully and therefore the continuation of the Plaintiff in possession of the said property was illegal and the Plaintiff was liable to pay the damages as well as mesne profits of Rs. 7,20,000/-from 1.10.2007 apart from handing over the vacant possession of the suit schedule property to the 2nd Defendant. Thus the counter claim was made under Order 8 Rule 6-A of CPC for the above said reliefs.
4. Thereafter, the Plaintiff filed I.A. No. 2161 of 2010 under Order 8 Rule 6C of CPC to exclude the counter-claim made by the Defendant No. 2 contending that the said claim was beyond the scope of the relief sought in the main suit. The Defendant No. 2 opposed the said application and the Court below after hearing both the parties, dismissed I.A. No. 2161 of 2010 by order dated 31.03.2011. Aggrieved by the said order, the present Civil Revision Petition is filed by the Plaintiff.
5. I have heard the learned Counsel for the Petitioner and perused the material available on record.
6. The learned Counsel for the Petitioner vehemently contended that since no relief was sought by the Plaintiff against the Defendant No. 2, the question of making a counter claim by the Defendant No. 2 did not arise and therefore on that ground alone the Court below ought to have excluded the counter claim. While submitting that the 2nd Defendant''s allegation that the Plaintiff took the possession of the suit schedule from the Defendant No. 2 was false and without any basis, the learned Counsel further contended that if aggrieved it was for the Defendant No. 2 to file a separate suit seeking appropriate relief, but she cannot maintain a counter claim against the Plaintiff.
7. Order 8 Rule 6A and Rule 6C of CPC which provide for counter claim by the Defendant and exclusion of such counter claim respectively, read as under:
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 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.
6C. Exclusion of counter claim
Where a Defendant sets up a counter claim and the Plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the Plaintiff may, at any time before issues are settled in relation to the counter claim, apply to the court for an Order that such counter claim may be excluded, and the court may, on the hearing of such application make such Order as it thinks fit.
8. As could be seen, Order 8 Rule 6A of CPC entitles the Defendant to set up any right or claim against the claim of the Plaintiff in respect of a cause of action accrued to the Defendant against the Plaintiff either before or after filing the suit. Sub-rule (2) of Rule 6A further made it clear 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.
9. It is true that Sub-rule (1) states that the counter claim can be set up against the claim of the Plaintiff. However there is nothing to infer that a counter claim can be made only by a Defendant against whom a specific relief is sought by the Plaintiff. On the other hand, the language of Sub-rule (1) of Rule 6A of CPC makes it clear that it is open to the Defendant to make a counter claim in respect of a cause of action accruing to him against the Plaintiff either before or after filing of the suit.
10. In the instant case, the suit is filed for specific performance of the Agreement of Sale executed by the Defendant No. 1 in respect of the suit schedule property. The Defendant No. 2 claims title in respect of the very same property under a Registered Sale Deed executed by the Defendant No. 1 through his General Power of Attorney-holder. It is also pleaded by the Defendant No. 2 that though she was put in possession of the suit schedule property by the Defendant No. 1 through his General Power of Attorney-holder pursuant to the Registered Sale Deed, the Plaintiff, who got a criminal case registered against the husband of the 2nd Defendant on 24.05.2007, had dispossessed the 2nd Defendant unlawfully. Thus the cause of action arose against the Plaintiff after filing of the suit. It is also relevant to note that though the decree for specific performance is sought against the Defendant No. 1, in the event of the suit being decreed, the rights of the Defendant No. 2, who claims title in respect of the same property would invariably affected. Therefore the 2nd Defendant is certainly entitled to set up a counter-claim against the Plaintiff''s claim in the suit notwithstanding the fact that the Plaintiff did not seek any relief against the Defendant No. 2.
11. Under Rule 6C though it is open to the Plaintiff to contend that the claim raised by the Defendant ought to be disposed of in an independent suit, it is for the Court to decide whether it is necessary in the given facts and circumstances to strike out the counter claim. Order 8 Rule 6C of CPC provides for an exception to the general rule under Rule 6A that a suit claim and counter claim ought to be regarded as constituting a unified proceeding. Therefore a counter claim can be excluded only where the Court finds that the filling of the counter claim is not fair to the Plaintiff or where it is likely to create complications and prolong the trial. No such case could be made out by the Plaintiff in the present case.
12. For the aforesaid reasons, in my considered opinion, the 2nd Defendant is entitled to set up a counter claim and the Court below had rightly declined to exclude the same. Hence the order under Revision which did not suffer from any patent error of fact or law warrants no interference by this Court.
13. Accordingly, the Civil Revision Petition is dismissed. No costs.
