Manmohan Singh, J.@mdashBy this order, I shall dispose of the following two applications filed by the Plaintiff:
a) IA No. 9064/2010 under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC).
b) IA No. 9065/2010 under Order VIII Rule 6 CPC.
2. First I shall take the application filed under Order 12 Rule 6 CPC read with Section 151 CPC seeking relief to pass the judgment and decree on the basis of the admissions made by the Defendants in the written statement.
3. The brief facts are that the Plaintiff has filed the suit for partition, possession and permanent injunction in respect of property bearing No. 375, Functional Industrial Estate, Patpargang, New Delhi, admeasuring 450 sq. meters (hereinafter referred to as suit property). The partition is sought on the basis of the Plaintiff being co-owner of the suit property. The other co-owner of the suit property is Defendant No. 1.
4. The ownership of the suit property is claimed under Conveyance Deed dated 19.12.2007 in the name of the Plaintiff and the Defendant No. 1.
5. The suit property consists of basement, ground floor, mezzanine floor and first floor. The site plan of each floor has also been filed. The Defendant No. 1 Puneet Mongia is a financer and the Defendant No. 2 is the father of the Defendant No. 1.
6. In the year 1999, the Plaintiff and the Defendant No. 2, who was the friend of the Plaintiff, agreed to jointly purchase the property. However, the Defendant No. 2 had purchased the property in the name of his son i.e. the Defendant No. 1.
7. All the documents were executed in the joint names of the Plaintiff and the Defendant No. 1. On the basis of the Conveyance Deed dated 19.12.2007, the suit property was mutated in the record of MCD accordingly in their names.
8. Both, the Plaintiff and the Defendant No. 1, had also opened a separate joint account bearing No. 34010 with Canara Bank and they used to deposit money therein for raising of construction on the suit property and the same was also converted from leasehold to freehold. After certain period, the Plaintiff had to visit Canada in the month of May, 2007 for some time and came back to India in the month of July, 2007.
9. The suit property was also given on rent to various lessees. The lease deeds in respect thereof are also placed on record. Both, the Plaintiff and the Defendant No. 1, had admittedly shared the rent as co-owner of the suit property.
10. The lease deed of the suit property was expiring in June 2008 and at that time also the Plaintiff had to travel back to Canada for personal reasons. The Plaintiff asked the Defendant No. 1 to renew the lease of the suit property with the tenant. At that time, according to the Plaintiff, the Defendant No. 1 refused to cooperate in letting out the property to a new company.
11. The Plaintiff has also made various allegations against the Defendants by stating that the Defendant No. 2 was using abusive language as both the Defendants from time to time were insisting that the Plaintiff should sell the property to Defendant No. 1.
12. The Plaintiff thereafter filed a complaint on 04.11.2009 to Lt. Governor of Delhi and Police Commissioner and other Police Stations and sought protection for himself and his family.
13. After that, the Plaintiff filed the present suit against the Defendants. Vide order dated 18.11.2009, this Court passed an interim order thereby directing the Defendant No. 1 to maintain the status quo as regards the possession and title in respect of the said property. That interim order is continuing.
14. The Defendant No. 1 upon service filed the written statement along with the counter claim. In para 4 of the written statement, it is clearly admitted by the Defendant No. 1 that in the year 1999 the Plaintiff and Defendant No. 1 had agreed to purchase the suit property jointly and all the title documents with regard to the suit property were executed in the joint names of the Plaintiff and the Defendant No. 1.
15. It is also not disputed by the Defendant No. 1 that the Plaintiff and the Defendant No. 2 had opened a separate joint account in Canara Bank and both of them used to deposit money therein for the purpose of construction on plot.
16. The grievance of the Defendant No. 1 against the Plaintiff is that the Plaintiff had withdrawn a sum of Rs. 11,97,500/- by issuing various cheques for self and no detail of the accounts was given by the Plaintiff.
17. In the counter claim filed by the Defendant No. 1, he has admitted that claimant and the Plaintiff jointly purchased the plot measuring 450 meters known as property No. 375, Functional Industrial Estate, Patparganj, New Delhi. In the counter claim, it is also stated that the Plaintiff had withdrawn a sum of Rs. 11,97,500/- by issuing various cheques to himself, but, as of today, the Plaintiff has not rendered the true accounts of the expenditure incurred and for the amount which he had withdrawn from the account despite various requests and reminders.
18. In the counter claim, a prayer of the Defendant No. 1 is that a decree be passed in favour of the Defendant No. 1 and against the Plaintiff for rendition of accounts thereby directing him to render the actual accounts of the expenses incurred on construction and for conversion of the suit property from leasehold to freehold and also for the amount withdrawn by the Plaintiff for himself.
19. The prayer made by the Plaintiff in the present application is that in view of the co-ownership of the suit property as admitted by the Defendant No. 1, a decree for partition be passed in respect of property bearing No. 375, Functional Industrial Estate, Patpargang, New Delhi.
20. In the second application as mentioned above, the Plaintiff seeks separation of claim/suit of the Plaintiff and counter-claim of the Defendants. In order to seek relief, the statement made by the Plaintiff in paras 6 and 7 of the application read as under:
6. That the Defendant No. 1 has also setup his counter claim for seeking recovery and the rendition of accounts of Rs. 6,00,000/- (Rupees Six Lakhs only), though it is time-barred, has no relevancy in terms of counter claim to suit for partition, possession and permanent injunction in respect of suit property. The Defendant No. 1 has separate cause of action to seek recovery, if any, against the Plaintiff. The subject matter and issues which are involved in claim and counter claims, are altogether different to each other.
7. That the relief of partition, possession and permanent injunction, which is sought by Plaintiff herein are altogether of different nature arising out of separate cause of action. Whereas, the relief of recovery and rendition of accounts which is setup as a counter claim by Defendant No. 1 in his written statement are arisen out of separate cause of action and thus both the relief''s sought by the Plaintiff and by Defendant No. 1 are not inter linked in any manner. The evaluation of relief''s for the purpose of pecuniary and territorial jurisdiction also differs, if compared, the relief''s sought in the plaint and in counter claim. In view thereof, this Hon''ble Court has no pecuniary jurisdiction to entertain counter claim, as the same is evaluated less than Rs. 20,00,000/- (Rupees Twenty Lakhs only). It is pertinent to mention that it is not the case of Defendant No. 1 that the alleged failure on the part of Plaintiff has resulted in Defendant No. 1 having any claim, right or interest in the suit property over and above the right i.e. 50% of Defendant No. 1 by virtue of Conveyance Deed. Thus the counter claim of Defendant No. 1 shall be tried separately as an independent suit. The disposal of claim of Plaintiff and counterclaim would further lead to delay in disposal of matter.
21. It is settled law that the counter claim has to be treated as an independent suit under the provision of Order 8 CPC. The said provision has been discussed in detail by the Division Bench of this Court in the case of
6. It is also inherent in sub-Rule 2 of Order 8 Rule 6-A that the object of this rule is to avoid conflicting judgments by different courts on common issues which may arise between a suit and the counter claim and which can happen if the suit claim and the counter claim are heard separately by different courts. The intendment with respect to applicability of the principles for consolidation of suits is inbuilt in sub-Rule 2 of Order 8 Rule 6-A and which intention of the legislature becomes further clear when we refer to Rule 6-C of Order 8. Ordinarily, a suit claim and the counter claim relate to the same subject matter and inter-related causes of action and therefore are best disposed of by hearing and disposing of both the suit and the counter claim together, however, it is not necessary that the subject matter and causes of action of the counter claim and the suit claim may be so inextricably interlinked and in such case it is open to the court under Rule 6 of Order 8 to separate the trials of suit and the counter claim. The spirit of Order 8 Rule 6-C is in accordance with Order 2 Rule 6 of the CPC which allows a court to direct separate trials when there is misjoinder of various causes of action in one suit on the ground that there may be embarrassment or delay in the trial of one cause of action because of its misjoinder with it or another cause of action.
8. In the first judgment, the Madras High Court in the case of
... Nevertheless, in its most operative provision, it lays down that the Court shall pronounce a single judgment in the suit, both on the original claim and on the counterclaim. The susceptibility of a counterclaim to be dealt with in a single judgment along with a suit claim, runs counter to the idea of the two being regarded as things apart. It is not merely that the Code provides for a single judgment to dispose of, at one stroke, the suit claim as well as a counter-claim, like hitting two birds with one stone. But R.6-C specifically lays down a special procedure to separate the suit claim from the counter-claim, wherever the separation is called for. This provision emphasises by implication that as a general rule a suit claim and a counter-claim ought properly to be regarded as constituting a unified proceeding. The rule, however, makes for an exception, and it is this; should the Plaintiff in a given case desire that the counter-claim filed by the Defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief before the trial Court and it should be done before the issues are settled. On his application for amending his suit claim and the counter-claim, the court will have to consider whether the counter-claim should be dealt with as part and parcel of the suit or whether the Defendant should be referred to a separate suit. These exceptional provisions in Rule 6-C only illustrate the homogeneity of the suit claim and the counter-claim as a single proceeding.
9. In the next case, the Bombay High Court in
... Under Order 8, R.6A of the CPC a Defendant in a suit may 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. The proviso set out that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Under O.8, R.6, therefore, once a suit has been filed the Defendant can set up by way of counter-claim any right or claim against the Plaintiff which arises before the Defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter-claim may be a claim in the nature of damages also. The only restriction as set out in the provision is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a united proceeding. Although O.8, R.6A provides that the counter-claim is to be treated as a plaint and is to be governed by the rules applicable to plaints, it is not to be treated as a completely separate suit. In fact under O.8, R.6A Sub-rule (2) the counter-claim is to be treated 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, so that both the proceedings can be disposed of by a common judgment.
22. Further, it is also pertinent to mention that the Plaintiff has given reply to the allegation made by the Defendant No. 1 against the Plaintiff for withdrawal of the amount of Rs. 11,97,500/-. The detail of the accounts are referred to in para 24 of the replication which has been filed to the counter claim by the Defendant No. 1. Para 24 of the replication filed on 17.02.2011 reads as under:
24. That the contents of para 24 of counter claim are partly admitted so far withdrawal of Rs. 11,97,500/- are concerned. It is denied that the Plaintiff till date has not rendered the true accounts of the expenditure incurred and for the amounts, which he had withdrawn from the account, in spite of repeated requests and reminders in this behalf. It is submitted that the Plaintiff alone was not issuing the cheques with regard to the construction. The Plaintiff used to make payments to the respective retailers. The Defendant No. 1 & 2 used to maintain statement of cash accounts and not the Plaintiff. The entire cash to the tune of Rs. 11,97,500/- was used jointly by Plaintiff and Defendant No. 1 towards the construction. The Defendant No. 2 used to make payments to the creditors against the construction work and material of the suit property, on behalf of Defendant No. 1. Defendant No. 2 is the father of Defendant No. 1. The statement of cash payments, which have been made by the Plaintiff and by the Defendant No. 1 and 2, have been drawn hereinabove. The receipts against the payments being made by the Plaintiff are attached herewith. The payments, as per the above statement of account, have been noted by the Defendant No. 1 and 2 in their personal diaries at a relevant time at the time of progress of construction. The said notings of the Defendant No. 1 and 2 are running into 5 pages. The said personal notings of Defendant No. 1 and 2 were handed over to the Plaintiff at the time of settlement of accounts or rendition of accounts, after completion of construction on suit property. It is evident from the said personal notings of Defendant No. 1 and 2, that the counter claim being set up by them is sham, false and frivolous. The Plaintiff has been truthful and honest to the Defendants, much less in respect to withdrawal of money in his name, construction work and rendition of accounts. The Defendants have set up their counter claim in order to frustrate the right of Plaintiff in the suit property. The Defendants have never approached the Plaintiff and requested him to render the accounts. It is in fact the Plaintiff, who on his own volition settle the accounts with the Defendants and gave all the details of expenditure being incurred in respect of construction to the Defendants. It is submitted that the Plaintiff is a mechanical engineer by qualification and is a highly reputed successful businessman.
23. In view of the specific reply given by the Plaintiff and the fact that the Defendant No. 1 has not filed any application under Order 12 Rule 6 CPC in its counter claim, the contention of the counsel appearing on behalf of the Defendants that the counter claim may also be decreed in favour of the Defendants cannot be accepted. Thus, the application, being IA No. 9065/2010, is allowed and it is ordered that the counter claim filed by the Defendant No. 1, being CC No. 23/2010, be separated and proceed further in accordance with law.
24. As regards the Plaintiff''s application filed under Order 12 Rule 6 CPC, the same is allowed and a preliminary decree on admission is passed accordingly.
25. Mr Amrit Pal Singh Gambhir, Adv. (Mobile No. 9810082347, Chamber No. 393 Lawyers'' Chamber Block-II, Delhi High Court) is appointed as a Local Commissioner who shall visit the premises of the suit property to suggest the ways and means in which the property can be partitioned by metes and bounds so that Plaintiff be given possession of half portion of the suit property. The Local Commissioner will have to file his report within six weeks from today. The final decree will be passed as and when the Local Commissioner shall complete the inquiry in this regard and file his report within six weeks from today. Fee of the Local Commissioner is fixed at Rs. 60,000/- which shall be paid by the Plaintiff and Defendant No. 1 in equal share. Both the applications stand disposed of.
CS (OS) No. 2189/2009
List before the Joint Registrar on 09.09.2011 for directions.
