Monday, 17 October 2016

Whether defendant can add additional defendant in suit?

In this case, the petitioners wanted to implead Basheer

son of the plaintiffs to whom the plaintiffs have released their

rights in the immovable property inherited by them as legal heir

of late Usman as contended by them in the plaint as well as in

their replication and as also the second petitioner herein as

supplemental defendants in the suit and also appoint the            first

petitioner as guardian of the second       petitioner.   The    right to

implead in the suit is always on the plaintiffs as they are the

masters of the suit. If a third party wanted to come on record by

himself, then he can file an application to implead himself in the

suit and if the court is satisfied that he can be impleaded and his

presence is required for proper adjudication of the case, then the


court can allow the third party to be impleaded in the suit. But

the defendant had no right to get any third party to be impleaded

in the plaint. If the defendant wants to implead any party whom

he or she feels required for proper adjudication of the counter

claim between the plaintiffs and the defendant, raised by the

defendant        in the written   statement, then such    party can be

impleaded as additional defendant in the counter claim and not in

the suit. So under such circumstances, though the court below

had come to a conclusion that no third party can be impleaded

which appears to be not correct, but the ultimate result of the

petition dismissing the same is right because the defendant is not

entitled to implead any third party as additional defendants in the

suit but if they want, they can file an application to implead them

as additional defendants in their counter claim. So under such

circumstances,          this court is of the view that dismissal of the

application by the court below is not sustainable for the reasons

stated in the order, but the same is found to be justifiable for

the     reasons         mentioned above.    If the petitioners file an

application to impead a party whom they want to implead for

proper adjudication of the counter claim in the counter claim as

additional defendants, the court below is directed to consider the

same and pass appropriate orders in that application taking into

consideration the principle on this aspect discussed by the court in



the judgment. Further whether the counter claim will have to be

proceeded along with the suit claim or it will have to be relegated

to a separate suit as contemplated under Order 8 Rule 6(c) of

the     Code      can also be considered by the court when such a

contention has been raised by the counter claim defendants who

are the plaintiffs in the suit as required to be decided under that

provision in accordance with law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                   MR. JUSTICE K.RAMAKRISHNAN

        30TH DAY OF SEPTEMBER 2016

                                        OP(C).No. 2866 of 2014 (O)
                                    

           PULIKKIPOYIL SALSAMATH USMAN,
                  

              PULIKKIPOYIL MOIDEEN KUNHI,
                     


       The defendant and her minor daughter in O.S.475/2011 on

the file of the 3rd Additional Sub Court, Kozhikode have filed this

petition challenging Ext.P7 and P8 orders passed by the court below

under Article 227 of the Constitution of India.

      2.    Respondents 1 and 2 herein filed Ext.P1 suit as

O.S.475/2011 on the file of the 3rd Additional Sub Court for

recovery of an amount of 12,28,099/- from the defendant, who is
                              `

the first petitioner here. It is alleged in the petition that the first

petitioner herein is the widow of their deceased son Usman @

Mujeeb. Apart from the plaintiffs and the defendant in the suit, as

per muslim law his children Shana Sherin and Shamna Thasnim are

the legal heirs of the deceased Usman. Out of the female children of

Usman, Shana Sherim died on 13.10.2008 and as per muslim law,

her estate will devolve on the first plaintiff and the defendant and

her sister Shamna Thasnim as her legal heirs. The first plaintiff is

entitled to get 68/243 share, 2nd plaintiff is entitled to get 36/243

share and the remaining shares will devolve on the defendant and

her daughter Shamna Thasnim. The plaintiffs have released their

right in the immovable properties which they inherited on the death

of Usman in favour of their son Basheer. The defendant and her


daughter are the co-owners of that property. Usman had taken a

policy with life insurance corporation and bajaj alliance and he had

shown his wife namely the defendant as his nominee. On the death

of Usman, the defendant had collected the amounts with the

consent of the plaintiffs and she had collected `21,20,808/- from life

insurance        corporation  and `8,16,000/-
                                               from    Bajaj   Alliance

insurance. But she had not paid the share due to the plaintiffs.

Though they have sent a notice demanding the amount, she had

sent a reply with false allegations. The plaintiffs are jointly entitled

to get 12,56,905/- being their share of 104/243 in the amount,
          `

which the defendant is liable to pay. Since she did not pay the

amount, the present suit has been filed by the plaintiffs for

realisation of the amount.

        3.      The defendant who is the first petitioner herein filed

Ext.P2 written statement admitting the relationship and also

devolution of right on the death of her husband Usman @ Mujeeb

and also receipt of the amount due under the policies in the name of

Usman from life insurance corporation as well as Bajaj Alliance

insurance, but submitted that the amount claimed is not correct.

Certain amounts have been spent for the purpose of discharging the

liability of deceased Usman @ Mujeeb.        She had also raised a

counter claim for partition of counter claim A schedule properties,



which belonged to her late husband Usman @ Mujeeb and also

claimed set off in respect of the amount used by her from the

amount due to Usman @ Mujeeb for discharge of his liabilities. The

respondents filed Ext.P9 replication to the counter claim which was

produced along with I.A.1132/16 by the petitioners wherein they

have stated that the immovable property need not be included in

the suit and they have released their undivided share in the counter

claim A schedule property in favour of their son Basheer, who is a

necessary party to the proceedings. They have also denied that

deceased had any liabilities which the counter claim plaintiff had

discharged and they have no liability to contribute anything to the

same. Further the valuation shown is not proper and the court fee

paid is also not correct. On the basis of the replications, plaintiff

filed I.A.937/13 to implead her daughter Shamna Nasnim, minor

represented by the first petitioner and Pulickapoyil Basheer as

additional defendants 2 and 3 in the suit and also filed I.A.938/2013

to appoint the defendant who is the first petitioner herein as the

guardian of the proposed 2nd defendant, who is a minor. The

respondent filed counter to the same stating that in their suit 3rd

parties cannot be impleaded and they prayed for dismissal of the

applications.       The court below had by impugned Ext.P7 and P8

orders dismissed those application. Aggrieved by the same, the

present petition has been filed by the petitioners, who are the



petitioners in those applications before the court below.

        4. Heard Sri. S. Kannan, counsel representing Sri. Firoz K.M,

counsel for the           petitioners and Sri.V.V. Surendran,      counsel

appearing for the respondents.

        5. Learned counsel appearing for the petitioners submitted

that      the court below was not           justified in   dismissing the

application for impleading          additional defendants    and also for

appointing the first petitioner as guardian of the second petitioner in

the     counter claim.      The    court below had not     understood the

principles behind filing of counter claim. If there are other cause

of action which arose for the defendant against the plaintiffs, the

defendant can raise a counter claim              against the plaintiffs. It

need not necessarily be on the basis of the same cause of action on

which the plaintiffs had laid the claim against the defendant. It is

also not       necessary     that   counter claim   can be made only in

respect of money claim and not in respect of other subject

matter as well. The intention behind raising counter claim is to

avoid multiplicity of suits between the same parties.         If at all the

court below felt that they cannot be impleaded as defendants in

the plaint, they can be permitted to be impleaded as defendants in

the counter claim as          counter claim is also to be treated as plaint

for the purpose of considering the question involved in the counter

claim between the parties. He had relied on the decision reported


in Sarojini Amma v. Dakshayani Amma (1996 (2) KLT 74),

Sukhalal v. Munsiff, Cherthala (1997(1) KLT 247), P.V. George

v. Bank of Madurai Ltd (1986 KLT 406) and Chellappan v.

Krishnankutty (2001 (3) KLT 403) in support of his case.

        6. On the other hand, learned counsel for the respondents

submitted that the suit is one filed for recovery of certain amount

from the defendants, who received the same from the insurance

company in which the plaintiffs are also having right and it is only

to realize their share that the present suit has been filed. So the

claim in respect of partition of immovable properties           cannot be

treated as counter claim. So according to their counsel, the court

below was perfectly justified in           dismissing the  application for

impleading and also for appointment of guardian on the ground that

they cannot be impleaded in the suit filed by the plaintiffs.

        7. It is an admitted fact that the respondents are the parents

of deceased Usman @ Mujeeb and the petitioners herein are the

widow and child of deceased Usman @ Mujeeb.                 It is also an

admitted fact that late Usman @ Mujeeb had taken life insurance

policy from the Life Insurance Corporation of India and also from

Bajaj Alliance Insurance            showing his wife,  the first petitioner

herein, as the nominee. It is also an admitted fact that he was also

having       immovable property.        It is an admitted fact that   as a

nominee,        the     first petitioner had withdrawn   the amount due


under the policies from the Life Insurance Corporation and Bajaj

Alliance      Insurance     and     plaintiffs/respondents herein      who are

parents of deceased Usman had filed the above suit for recovery

of their share from the amount due under the policies on the death

of their son Usman @ Mujeeb. Though the suit was filed as a

recovery of        their share, virtually it is a      suit for partition  and

realistion of their share          in the     amount received       by the first

petitioner herein as a nominee of the deceased husband. So the

counter claim filed by the defendants for partition of the immovable

properties belonging to deceased Usman @ Mujeeb as a counter

claim cannot be said to be a different cause of action or subject

matter which cannot be raised as a counter claim in the same suit.

        8. Order 8 Rule 6A to G of Code of Civil Procedure deal with

counter claim and the procedure for dealing with the same which

reads as follows:

                 "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 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 excded 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.

                 6B.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.

                 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.

                 6D. Effect of discontinuance of suit: If in any case

        in which the defendant sets up a counter-claim, the suit of the

        plaintiff is stayed, discontinued or dismissed, the counter-claim

        may nevertheless be proceeded with.



                 6E. 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 mad against him, or make such order in relation

        to the counter-claim as it thinks fit.

                 6F. Relief       to defendant       where     counter-claim

        succeeds:- Where in any suit a set-off or counter -claim is

        established as a defence against the plaintiff's claim, and any

        balance is found due to the plaintiff or the defendant, as the

        case may be, the          Court may      give judgment to the party

        entitled to such balance.

                 6G. Rules relating to written statement to apply:-

        The rules relating to a written statement by a defendant shall

        apply to a written statement filed in answer to a counter-claim"

        9. In the decision reported in Pathrose                             Samual v.

Karumban Parameswaran (AIR 1988 Ker. 163)                                this court has

held that:

            "There is definitely some difference between 'set off' and 'counter

            claim'. Set off is also in a sense a counter claim against the

            plaintiff, but in essence it is a form of defence in which the

            defendant while acknowledging the justice of the plainiff's claim

            sets up a demand of his own to counter balance it either wholly

            or in part. Counter claim is substantially a cross suit. It is really

            a weapon of offence and enables the defendant to enforce a claim

            against the plaintiff as effectively as an independent action. It

            need not be an action of the same nature as the original action or



            even analogous thereto even though the claim has to be one

            entertainable by the court.    According to the dictionary meaning

            it is a claim made to offset another claim especially in law whereas

            set off is something that counter balances or makes up for

            something else. The proposition that a counter claim can be made

            only in a suit for money cannot be accepted. There is nothing in

            R.6A limiting such claims to money suits in order to contend that

            whatever could be claimed is only the excess amount due to the

            defendant after setting off what is due to plaintiff under R.6. The

            words "in addition to his right of pleading a set off under R.6"

            appearing in R.6A are not capable of making such a restriction"


        10. In the decision                reported in Raman Sukumaran v.

Velayudhan Madhayan (AIR 1982 Ker. 253) it has been held that:

                    "Rule 6A contemplates counter claim in any suit. The scheme

          of the new rule is to permit the defendants to set up counterclaims,

          which arise between the parties and which are cognizable by the

          Court where the suit     is pending.   The object   appears to be   to

          reduce pendency of cases so that cause of action and cross claim

          similar in nature could be clubbed together and disposed of by a

          common judgment".


        11. In the           decision reported in Gaya Prasad v. Smt.

Jamwanti Devi (AIR 1998 Patna 53) it has been held that:

                   "Rule 6A of O.8 was introduced by amendment of 1976 and

           the    very   purpose   of  introducing     this  new    rule  on  the

           recommendation of the Law        Commission of India was to avoid

           multiplicity of the proceedings inasmuch as ignoring the frame of suit

           and giving right to the defendant to raise not only the plea of set off

           but also counter claim by setting up rights to himself irrespective of



           the fact whether the cause of action for counter claim had accrued

           afterwords of the filing of the suit. From the wordings and plain

           reading of Rule 6A of Order VIII it is clear that it contemplates

           counter claim with respect to any suit without having any restriction.

           Order XX, Rule 19(1) cannot restrict harmonious reading of Order

           VIII, Rule 6A rather if it is restricted in that sense then the whole

           purpose of    introduction   of new Rules 6A       to   6G would be

           frustrated."


In that case the Patna High Court has held in a suit for eviction

the defendant is entitled to set up a claim for title in himself as

counter claim and such a counter claim is maintainable.

        12. In the decision reported in Mohinder Singh Jaggi v.

Data Ram Jagannath (AIR 1972 SC 1048) it has been held that:

 "Where in a suit for recovery of certain amount on the basis of

Khata, the defendant by his additional written statement puts

forward a counter claim for accounting arising out of transactions

between him and the plaintiff on the basis of an agreement and

the Supreme Court has held that the written statement can be

treated as a cross claim."

        13. In the decision reported in Manikchand Fulchand

Katariya v. Lalchand Harakchand Katariya (AIR 1994 Bom.196)

it has been held that "counter claim is not limited to money suit

alone. In a suit for ownership and possession when the defendants

sets up title and possession in himself, decree granting possession


of suit premises in favour of the defendant passed on the basis of

the counter claim is perfectly justifiable.'

        14. In the decision reported in Jag Mohan Chawla v. Dera

Radha Swami, Satsang and others (AIR 1996 SC 2222) it has

been held that:

                 "In a suit for injunction, counter claim for injunction in respect of

         the same or a different property is maintainable. 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. 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 on 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 or 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".




        15. In the decision reported in Rohit Singh and others v.

State of Bihar (now State of Jharkand) (AIR 2007 SC 10), it has

been held that "counter claim cannot be be raised after framing of

issues and         counter claim directed solely against co-defendants



cannot be maintained. The court cannot proceed and grant decree

in favour of said co defendant only on the basis that no answer

has been filed to their counter claim by other defendants".

        16. In the decision reported in Gurbachan Singh v. Bhag

Singh and others (AIR 1996 SC 1087) it has been held that "in a

suit for injunction, the claim for possession by defendant also can

be entertained by virtue of Order 8 Rule 6(A)(1) of Code of Civil

Procedure.

        17. In the decision reported in Bollepanda P. Poonacha v.

K.M. Madapa (2008 (13) SCC 179) it has been held that "a counter

claim has been made on the basis of subsequent trespass by the

plaintiff cannot be entertained as cause of action for filing the

counter claim cannot be said to have arisen prior to the filing of

the written statement".

        18. In the decision reported in Ramesh Chand Ardawatiya

v. Anil Panjwani (AIR 2003 SC 2508) it has been held that "right

to file counter claim runs with right of filing written statement. If

no written         statement is filed,  no   counter claim can be

entertained."

        19. In the decision reported in Rohit Singh and others v.

State of Bihar (now state of Jharkhand) and others (2006

(12) SCC 734) it has been held that in order to maintain a counter

claim, it has be directed against the plaintiff though incidentally or



along with it, it may also claim relief against co defendant.

        20. In the decision reported in Vijay Prakash Jarath v. Tej

Prakash Jarath (2016 (6) SCJ 8) it has been held that "cause of

action in respect of which a counter claim can be filed, should

accrue before the defendant has delivered his defence and not

thereafter".

        21. So it is clear from the above dictums that counter claim

need not be restricted to the cause of action on the basis of which

the plaintiffs had raised the claim and it can be a different

cause of action and not even having nexus with the cause of action

raised by the plaintiffs but it should be between the same parties

and that had accrued to the defendants prior to the filing of the

written statement or deliver his defence or right to deliver his

defence expires. It need not necessarily be in respect of the same

subject matter as well but counter claim can be entertained only

against the plaintiffs and      it cannot be claimed only against   co

defendants alone but if it was directed against the plaintiff

incidentally relief can be claimed in respect of co defendants as well

and in such cases counter claim is maintainable as against the

plaintiffs     as well as    co defendants. It is also settled law that

counter claim cannot be raised after issues are framed and after

the defence is delivered by the defendants.

        22. The question as to whether a third party can be



impleaded in order to consider the question on counter claim has

been considered by this court in the decision reported in Sarojini

Amma's case (cited supra) where it has been held that:

                   "Counter claim not necessarily confined to claim made

           against the plaintiff. Addition of other interested parties cannot be

           said to  be in contravention of Rule 6A if the court is satisfied

           that without them the adjudication will be incomplete". Further in

           the same decision it has been held that the additional parties can

           be impleaded in the counter claim as additional defendants if they

           are also necessary parties to effectively adjudicate the matter as

           the counter claim is treated as plaint in the cross suit".


        23. In the         decision        reported in Sukhalal's case (cited

supra) this court has held that:

                  "Order 8 Rule 6A does not require counter claim to be in the

          written statement itself. It should be before the expiry of time for

          delivering his defence. There is no requirement in the said rule that the


          counter claim should form part of the written statement".


        24. It is also held in the same decision that:

                    "The counter claim need not be connected with the original

          cause of action/matter pleaded by 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."


        25. In the         decision reported in P.V. George's case (cited

supra), it has been held that "Impleading at the instance of the



defendant          can be done           if found that such impleadment               is

necessary for effective adjudication."

        26. In the decision reported in Chellappan's case (cited

supra) it has been held that "it is proper to implead a person who

has direct interest in property as additional defendant                         so as to

avoid multiplicity of suits. The interest should be direct, legal and

not commercial." In that decision this court has relied on the

dictum laid down in Vishnu Naboothiri v. Sankara Pillai (1968 KLT

692) where Justice Krishna Iyer                  as he then was            quoted   the

following passage            from Mulla's C.P.C. Vol.1 which                   reads as

follows:

                 "The test is not whether the joinder of the person proposed to

         be added as a defendant would be according to or against the

         wishes of the plaintiff or whether the joinder       would involve    an

         investigation into a question not arising on the cause of action averred

         by the plaintiff. It is whether the relief claimed by the plaintiff will

         directly affect the intervener in the enjoyment of his rights. It is not

         enough that the plaintiff's right, and rights which the person desiring

         to be made a defendant wishes to assert should be connected with

         the same subject matter. The intervenor must be directly and legally

         interested in the answers to the questions involved in the case. A

         person is legally interested in the answer only if he can say that it may

         lead to a result that will affect him legally that is by curtailing his

         legal rights."


        27. It is clear from the             above dictums that, a third party

can be impleaded to consider the question of counter claim, if



the court is of the opinion that      their presence is    required for

proper adjudication of the counter claim between the counter claim

plaintiffs and the counter claim defendant. Further in the decision

reported in Sarojini Amma's case (cited supra),           the question

arose when certain parties were impleaded as respondents in the

counter claim, the validity of the same was challenged and this

court has held that in order to determine the counter claim between

the parties if the presence of non party to the plaint is also required,

then they can be impleaded as defendants in the counter claim

though defendants are not entitled to implead them as additional

defendants in the plaint.

        28. In this case, the petitioners wanted to implead Basheer

son of the plaintiffs to whom the plaintiffs have released their

rights in the immovable property inherited by them as legal heir

of late Usman as contended by them in the plaint as well as in

their replication and as also the second petitioner herein as

supplemental defendants in the suit and also appoint the            first

petitioner as guardian of the second       petitioner.   The    right to

implead in the suit is always on the plaintiffs as they are the

masters of the suit. If a third party wanted to come on record by

himself, then he can file an application to implead himself in the

suit and if the court is satisfied that he can be impleaded and his

presence is required for proper adjudication of the case, then the


court can allow the third party to be impleaded in the suit. But

the defendant had no right to get any third party to be impleaded

in the plaint. If the defendant wants to implead any party whom

he or she feels required for proper adjudication of the counter

claim between the plaintiffs and the defendant, raised by the

defendant        in the written   statement, then such    party can be

impleaded as additional defendant in the counter claim and not in

the suit. So under such circumstances, though the court below

had come to a conclusion that no third party can be impleaded

which appears to be not correct, but the ultimate result of the

petition dismissing the same is right because the defendant is not

entitled to implead any third party as additional defendants in the

suit but if they want, they can file an application to implead them

as additional defendants in their counter claim. So under such

circumstances,          this court is of the view that dismissal of the

application by the court below is not sustainable for the reasons

stated in the order, but the same is found to be justifiable for

the     reasons         mentioned above.    If the petitioners file an

application to impead a party whom they want to implead for

proper adjudication of the counter claim in the counter claim as

additional defendants, the court below is directed to consider the

same and pass appropriate orders in that application taking into

consideration the principle on this aspect discussed by the court in



the judgment. Further whether the counter claim will have to be

proceeded along with the suit claim or it will have to be relegated

to a separate suit as contemplated under Order 8 Rule 6(c) of

the     Code      can also be considered by the court when such a

contention has been raised by the counter claim defendants who

are the plaintiffs in the suit as required to be decided under that

provision in accordance with law.

        So under such circumstances, this court feels that there is

no necessity to interfere with the order passed by the court below

invoking the power under Article 227 of the Constitution of India,

but leaving liberty for the petitioners to file an application to

implead       them as       additional defendants in the counter   claim

raised by the defendant in the written statement and subject to

consideration of the contention to be raised under Order 8 Rule 6(c)

of the       Code by the      counter claim defendants, this petition is

disposed of.

        With the above directions and observations this petition is

disposed of. Registry is directed to communicate a copy of this

judgment to the court below at the earliest.




                                        K. RAMAKRISHNAN, JUDGE.





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