whether a counter-claim can be rejected in terms of Order VII, Rule 11 CPC, especially in the facts and circumstances of this case.= (i) Wherever the defence to a suit can survive even if the counter-claim goes, then the Court will be entitled to invoke Order VII, Rule 11 CPC and reject the counter-claim. (ii) Wherever the defence to the suit is so intertwined with the counter-claim that the rejection of the counter-claim will have the effect of killing the defence to the suit, the Court cannot invoke Order VII, Rule 11 CPC to reject the counter- claim.

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN

Second Appeal No.896 of 2017

15-12-2017

Jinendra Jewellers, Rep. by its Proprietor Kushal Raj, S/o Seshmal Jain, Aged 46 years, D.No.27-14-59, Rajagopalachari Stree

1.B.Venkateswara Rao, S/o late B.V. Subba Rao, Aged 62 years, R/o D.No.27-14-59, Rajagopalachari Street, Vijayawada 2. B.Vi
Vijayawada Respondents/Plaintiffs

Counsel for Appellant:Mr V.S.R. Anjaneyulu

Counsel for Respondents:Mr. P.R. Prasad

<Gist:

>Head Note:

? Cases referred:
1. 2007 (2) ALD 483
2. Manu/DE/0769/2014
3. AIR 2003 MP 185

 

HONBLE SRI JUSTICE V.RAMASUBRAMANIAN

Second Appeal No.896 of 2017
Judgment:
Aggrieved by the rejection of his counter-claim both by
the Trial Court and by the First Appellate Court, in terms of
Order VII, Rule 11 C.P.C., the defendant in a suit for recovery
of possession has come up with the above second appeal.
2. Heard Mr. V.S.R. Anjaneyulu, learned counsel
appearing for the appellant and Mr. P.R. Prasad, learned
counsel appearing for the respondents.
3. The respondents filed a suit in O.S.No.145 of 2016 on
the file of the II Additional Junior Civil Judge at Vijayawada,
praying for eviction of the appellant herein from the suit
schedule property and for future damages at the rate of
Rs.40,000/- per month. The case of the respondents/
plaintiffs in the suit was that the suit schedule shop was
taken on lease by the father of the appellant/defendant way
back in December, 2003; that subsequently the defendant
took over the shop from his father; that the defendant
committed default in payment of rent from April, 2015 and
that therefore after issuing a quit notice dated 23-12-2015,
the respondents/plaintiffs were constrained to file the suit for
eviction.
4. The appellant/defendant filed a written statement
claiming that a lease agreement was entered into on
16-7-2005, in and by which, the lease was agreed to be
extended for a period of 25 years and that therefore he was
not liable to be evicted. In addition to setting up such
a defence, the appellant/defendant also made a counter-claim
by seeking a decree for the relief of specific performance
of the registration of the lease deed dated 16-7-2005.
The appellant/defendant admittedly valued the relief of
specific performance made in his counter-claim and also paid
Court Fee thereon.
5. Thereafter, the respondents/plaintiffs appear to have
made a request to the Trial Court to reject the counter-claim
in terms of Order VII, Rule 11 CPC. Accordingly, the Court
below, by a judgment and decree dated 27-8-2016, rejected
the counter-claim alone.
6. The said judgment and decree was taken on appeal in
A.S.No.222 of 2016 by the defendant, but the Appellate Court
dismissed the appeal. Hence, the defendant has come up with
the above second appeal.
7. The one and only substantial question of law arising
for consideration in the above second appeal is whether
a counter-claim can be rejected in terms of Order VII, Rule 11
CPC, especially in the facts and circumstances of this case.
8. The power of the Court to reject a plaint cannot be in
doubt and the parameters are well set out in Order VII,
Rule 11 CPC. Order VIII, Rule 6-A(4) makes it clear that
a counter-claim shall be treated as a plaint and governed by
the rules applicable to plaints. Therefore, the applicability of
Order VII, Rule 11 CPC to counter-claims cannot be ruled out
in total. In fact, many High Courts have taken the view that
Order VII, Rule 11 CPC is applicable to counter-claims also.
This Court held so in Ananta Gas Suppliers v. Union Bank
of India . The High Court of Delhi took the same view in
Karan Madaan v. Nageshwar Pandey . In Mohan Lal v.
Saukhi Lal and the Madhya Pradesh High Court held
that a counter-claim can be rejected under Order VII,
Rule 11 CPC.
9. But one question which none of the Courts seem to
have considered so far is as to the circumstances in which or
the conditions under which a counter-claim can be rejected
by applying the parameters of Order VII, Rule 11 CPC.
If a counter-claim can be dissected into two portions,
one comprising of the defence to the plaintiffs claim and
another comprising of the counter-claim and the survival of
one of which does not depend upon the other, it may be
possible to apply Order VII, Rule 11 CPC with surgical
precision. But where the defence to a suit and the counter-
claim are joined in such a manner as Siamese twins, with
inherent danger to the survival of the defence to the suit,
upon the rejection of the counter-claim under Order VII,
Rule 11 CPC, the Court would be doing something more than
what a Court would normally do with respect to a plaint
under Order VII, Rule 11 CPC.
10. It could be seen from Order VIII, Rule 6-A(1) CPC
that it entitles a plaintiff to set up by way of counter-claim,
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 limit for delivering his defence has
expired. This is irrespective of whether the counter-claim is in
the nature of a claim for damages or not. Under sub-rule (2)
of Rule 6-A of Order VIII CPC, the counter-claim is to 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. Therefore, the
judgment and decree required to be delivered by the Court in
a case where there is a counter-claim, is to be in common for
both the claim and the counter-claim. In other words, there
will be only one judgment and one decree and not two
judgments and two decrees despite the fact that there are
virtually two suits, one in the form of a suit and another in
the form of a counter-claim.
11. Sub-rule (4) of Rule 6-A of Order VIII CPC states
that the counter-claim shall be treated as a plaint and
governed by the rules applicable to plaints. But it does not
mean that it is no more a written statement. It is also
a written statement to which Order VIII CPC applies,
even while Order VII CPC is made applicable to a part of the
same.
12. In fact, Rule 6-C of Order VIII CPC gives a right to
the plaintiff to seek an order to exclude the counter-claim on
the ground that the counter-claim ought not to be disposed of
except by way of an independent suit.
13. Therefore, the counter-claim is not exactly the same
as a plaint, despite having the traits of a plaint, since the
same is raised in a written statement. The scheme of
Order VIII, Rules 6-A to 6-G CPC itself recognises the fact
that there could be two different scenarios, one where the
counter-claim could be inextricably intertwined with the
defence and another where it is capable of being prosecuted
as an independent suit (as provided in Order VIII,
Rule 6-C, CPC).
14. Therefore, in addition to the parameters provided in
Order VII, Rule 11 CPC, the Court may also have to examine
while dealing with a prayer for rejection of the counter-claim,
as to whether the rejection of the counter-claim would have
the effect of striking off the defence or rendering the
defendant defenceless.
15. It must be remembered that at the stage of invoking
Order VII, Rule 11 CPC, the Court is not concerned with the
merits of the claim. But while dealing with a written
statement, the Court will certainly be considering the merits
of the claim.
16. In the case on hand, the suit is one for eviction.
The defence raised by the defendant is that he is entitled to
have a lease deed executed and registered for a period of
25 years from 16-7-2005. The document accompanying the
counter-claim appears to be an unstamped and unregistered
document. If the counter-claim is taken up for trial, we do not
know whether the said document will be allowed to be
marked in evidence at all, in view of the recitals contained
therein and the document not being duly stamped and
registered. We do not even know whether the defendant can
actually secure a decree directing the plaintiffs to execute and
register a lease deed for a period of 25 years with effect from
16-7-2005, especially in the light of the limitations imposed
by the Registration Act, 1908 to the registerability of
a document executed several years ago.
17. But all the above are on the merits of the case. That
the counter-claim raised is so weak and eventually can only
be thrown out, may not be a ground to invoke Order VII,
Rule 11 CPC, especially when the defence to the suit, depends
for its survival upon the counter-claim.
18. Therefore, the substantial question of law raised in
the above second appeal is answered to the following effect:
(i) Wherever the defence to a suit can survive even if the
counter-claim goes, then the Court will be entitled to invoke
Order VII, Rule 11 CPC and reject the counter-claim.
(ii) Wherever the defence to the suit is so intertwined
with the counter-claim that the rejection of the counter-claim
will have the effect of killing the defence to the suit, the Court
cannot invoke Order VII, Rule 11 CPC to reject the counter-
claim.
19. In the light of the above answer to the substantial
question of law, the second appeal is allowed and the
judgments and decrees of both the Courts below are set aside.
The Court below may take up the trial of the suit and the
counter-claim together and examine all questions including
the admissibility of the document relied upon by the
appellant/defendant, the effect of its not being stamped and
registered etc., and dispose of the suit in accordance with
law. The miscellaneous petitions, if any, pending in this
second appeal shall stand closed. No costs.

___________________________
V.RAMASUBRAMANIAN, J.
15th December, 2017.