Saturday, 2 March 2019

Whether court can permit impleading of additional defendants in counter claim?

It is also true that the defendant cannot raise a counter-claim against the co-defendants alone. The counter-claim necessarily has to be between the parties to the suit which means between the plaintiff and the defendants and for that purpose, if third parties are also necessary for considering the question of counter-claim, they also can be impleaded as additional defendants in the counter-claim. The plaintiff is the master of his suit, beyond doubt, and has liberty to add or delete anyone from the party array of the plaint. But equally true is it in a case of a counter-claim, which is as good as a plaint filed by the defendant against the plaintiff and may be some others as well. Hence, I find that the application for impleadment has to be allowed. But the plaintiff has the right to say that the defendant cannot insist on impleading other defendants in his plaint. But nothing prevents the defendant who raises a counter-claim from impleading additional defendants in his counter-claim. Hence the additional defendants are to be impleaded in the counter claim and not in the plaint. To this effect the impugned order is modified.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C) No. 814 of 2016

Decided On: 03.10.2018

Punnakkal Suresh Vs. Saraswathi

Hon'ble Judges/Coram:
Ashok Menon, J.

Citation: AIR 2019 kerala 48

1. The petitioner is the plaintiff in O.S. No. 59/2012 on the files of the Munsiff-Magistrate Court, Ponnani, while the respondent herein is the 3rd defendant in that suit. The suit is one for partition. Some of the defendants raised a plea of non-joinder and wanted certain additional defendants to be impleaded. They have also raised a counter-claim for addition of a property, which was not included in the plaint schedule, but were partible among the plaintiff and the defendants, as also among the parties sought to be impleaded. I.A. No. 1510/2015 was filed by the respondent herein for impleadment. The I.A. was dismissed by the trial Court at the first instance. That order was challenged before this Court in O.P.(C) No. 2499/2015 and vide Ext. P6 judgment the defendants were directed to file an application for framing additional issue regarding non-joinder, and the trial Court was directed to dispose of the I.A. afresh. In accordance with Ext. P6, the contesting defendants filed I.A. No. 87/2016 at Ext. P7 raising an issue regarding the non-joinder of parties and vide Ext. P8 the application for joinder of parties was allowed. It is that order of the learned Munsiff-Magistrate that stands challenged by the plaintiff in this Original Petition.

2. The plaint schedule property belonged to the father of the plaintiff and the defendants, late Karappayi, who had two wives and twelve children born in the wedlock. The first wife of Karappayi is no more. The second wife survived him and inherited the property along with the children in both the marriages. Out of the legal heirs, seven children released their partible interest in the property to the plaintiff by executing a release deed at Ext. P3. Those who have released their right in favour of the plaintiff are not impleaded in the suit.

3. The defendants 1, 3 and 5 filed Ext. P2 written statement together with a counter-claim regarding an item of property, which also belonged to Karappayi, but was not included in the partition suit. The property included in the counter-claim belongs to the legal heirs, including those who have released their right in favour of the plaintiff vide Ext. P3 deed. Hence they are sought to be impleaded, for they too are entitled to a share in the property.

4. The plaintiff contended in Ext. P4 written statement to the counter-claim that no counter-claim can be raised in a partition suit. Consequent to that, Ext. P5 I.A. No. 1510/2015 was filed by the defendants. In support of the objections raised by the petitioner-plaintiff, he has obtained and submitted Ext. P9 affidavit of those who had executed Ext. P3 release deed, in which, they have explicitly admitted that they are not interested in the suit and that they have relinquished whatever right they had in the plaint schedule property and executed Ext. P3 in favour of the plaintiff.

5. The learned Counsel for the petitioner would contend that in a suit for partition, the defendants cannot seek partition of additional properties, because the plaintiff is the master of the suit and it is for him to decide what items of properties are to be included for partition in his plaint. All that the defendants can do is to raise a challenge that the suit is bad for partial partition, but it would not enable them to seek inclusion of additional items unless, the plaintiff concedes to do so. The learned Counsel relies on the decision reported in Doraswamy v. Sivasankaran, MANU/KE/0525/2014 : 2014 (2) KHC 420 in support of the proposition that in a suit for partition, neither a counter-claim could be raised, nor impleading of additional defendants is possible. Paragraph 12 of the decision is extracted hereunder:

"12. The whole approach made by learned Sub Judge to the issues involved for adjudication and, particularly, over the contention raised by additional fourth defendant demanding inclusion of all items covered by Ext. A1 in the suit for partition instituted by another was erroneous and patently unsustainable. In a suit for partition if a defendant filing a schedule ask for inclusion of some additional items also for partition with the properties described and included in the plaint contending those items are also available for partition among the sharers, parties to the suit, to what extent it can be entertained has to be considered. If such a case is presented by one of the defendants in the suit, can the court pass a decree for division of those items also without amending the plaint schedule including such items and without the plaintiff agreeing to and seeking amendment of his plaint to include such items. At best defendant in a suit for partition who has a grievance that all items are not included, and as such the suit is bad for partial partition, can raise such a contention seeking inclusion of those items as well for division and allotment to the sharers. Plaintiff is the master of the suit and he is to decide what are the items to be included for partition. In his suit defendants can raise a challenge that it is bad for partial partition would not enable them to seek inclusion of other items for division also unless plaintiff concedes to do so. In a case where plea of partial partition is set up by defendant seeking inclusion of items not included, if possible, court can consider it as a preliminary issue and then pass appropriate orders. Even if any such order is passed in the suit for including other items not covered by plaint schedule, but, over which parties are having joint rights, only plaintiff can amend the plaint to include them. If the plaintiff does not desire to include those items for division no defendant without seeking transposition as plaintiff and amendment of plaint including such items, and, if only that is permitted, can have division of such items of properties. Defendants in a suit for partition are eo-nominee plaintiffs, but, the plaintiff who instituted the suit continues to be its master. Other than taking a contention that suit is bad for partial partition, if all items available for partition are not included in the suit, defendants are incompetent to set up any counter claim for inclusion of some more properties not included in the plaint for division in the suit instituted by another sharer."
6. Per contra, the learned Counsel appearing for the respondent argues that there is absolutely no embargo in raising a counter-claim in a suit for partition as well. The learned Counsel places reliance on the decision of the Karnataka High Court in Gowramma v. Nanjappa, MANU/KA/0620/2001 : 2002 KHC 3473. The facts in that case are helpful for perusal although not identical. The plaintiff in that suit had sought partition and the 5th defendant therein filed a written statement seeking separate possession of her share by paying court fee. The suit was sought to be withdrawn by the plaintiff after evidence. The 5th defendant, who filed the written statement seeking separate share of her property, objected to the withdrawal of the suit and wanted to proceed with the suit. The trial court overruled her objection and permitted the suit to be withdrawn. The Karnataka High Court found that even though the 5th defendant had right to file a separate suit for partition, since the suit was filed as early as in 1990 and she had contested the suit seeking separate share for herself, it was only appropriate to direct her to be transposed as plaintiff and then proceed with the matter, though she had not filed a separate application for transposing herself as plaintiff. Considering the plea raised in the written statement for partition and separate possession, the Karnataka High Court held that when the defendant seeks partition and separate possession of her share in a suit for partition filed by a plaintiff, and pays court fee, the defendant's claim is neither a set off nor a counter-claim against the plaintiff in the traditional sense, but is one of a wider scope. In paragraph 9, the Court held as thus:-

"9. At the outset it should be noticed that the reason given by the trial Court for rejecting the objection of first and fifth defendant to the memo of the plaintiff for dismissing the suit, is wholly erroneous. The trial Court has held that defendants prayer for partition is a counter claim; and that a counter claim is permissible only in a money suit and not in a partition suit; and therefore the counter claim was not tenable. Firstly, when a defendant in a suit for partition seeks his or her share in property by paying court-fee, such a defendant is not making a 'counter claim' against a plaintiff alone. He is virtually joining the plaintiff in seeking the relief. He is seeking relief for himself not only against the plaintiff, but also the other defendants. The Court below, therefore, fell into an error by treating the written statement in a suit for partition seeking separate possession of the defendants' share as a counter-claim against the plaintiff. Secondly, the Court also fell into an error in assuming that a counter claim is permissible only in a money suit and not in any other suit."
7. In Jag Mohan Chawla v. Dera Radha Swami, Satsang & others, MANU/SC/0565/1996 : AIR 1996 SC 2222, the Honourable Supreme Court has held that counter-claim is no longer confined to money claims or to cause of action on the same nature as original action of the plaintiff.

8. The learned Counsel appearing for the respondent also relies on the later decision of this Court reported in Pulikkipoyil Salsamath Usman v. Pulikkipoyil Moideen Kunhi, MANU/KE/1444/2016 : ILR 2017 (1) Ker. 454, wherein this Court relied on the decisions of this Court in Sarojini Amma v. Dakshayani Amma, MANU/KE/0318/1994 : 1996 (2) KLT 74; Sukhalal v. Munsiff, Cherthala, 1997 (1) KLT 247; P.V. George v. Bank of Madurai Ltd., MANU/KE/0301/1985 : 1986 KLT 406; and Chellappan v. Krishnankutty, MANU/KE/0335/2001 : 2001 (3) KLT 403, and held as thus:-

"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."
9. In Pulikkipoyil Salsamath Usman (supra) the defendant had filed a counter-claim and wanted to implead the son of the plaintiff as a necessary party for the purpose of adjudicating the claim raised in the counter-claim and it was 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.

10. After anxiously considering the arguments placed by both sides, I am in agreement with what is held by the Karnataka High Court and by this Court in Pulikkipoyil Salsamath Usman's case and find that there is nothing wrong in the impugned order allowing impleadment of additional parties, because they are necessary parties interested in the counter-claim raised by some of the defendants against the plaintiff and also some non-parties.

11. What is held in Doraswamy's case is that the defendant cannot raise a plea of counter-claim in a partition suit where the plaintiff has challenged the addition of certain properties and that, at best, the defendants can only raise a plea that the suit is bad for partial partition.

12. Rule 6A of Order VIII, C.P.C. 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 according to the defendant against the plaintiff either before or after the filing of the suit but before 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 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."

13. There is no embargo in raising a counter-claim along with the written statement. The respondent herein has raised a plea that certain property which belongs to the plaintiff and defendants as well as those who are not parties to the suit and therefore they are to be impleaded in the suit. The persons, who have relinquished their right in favour of the plaintiff, have only done so regarding the plaint schedule property and not with regard to the properties mentioned in the counter-claim. This High Court has in Raveendran v. Mruthyunjayan, MANU/KE/0419/1986 : 1986 KHC 345 : 1986 KLT 1305 : 1986 KLJ 1037 held that the position is very clear from the words "a claim for damages or not" in Rule 6A. Order VIII, Rule 6A(1) which provides that 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. Thus it can be seen that a defendant can set up a counter claim whether it be in the nature of a claim for damages or not. The words "a claim for damages or not" in R. 6A would unambiguously show that a counter claim can be brought in respect of any claim that can be the subject matter of an independent suit. It cannot be said that a counter claim can be confined only to money claims or to causes of action of the same nature as the original action. There is no justification in arguing that the counter claim must be connected with the original cause of action or matter and that the no counter claim is possible in a suit for partition.

14. The purpose behind raising a counter-claim is well explained in the decision reported in Gaya Prasad v. Smt. Jamvanti Devi MANU/BH/0012/1998 : AIR 1998 Patna 53 it is held that wherein it is held that a restricted reading would frustrate the purpose of introduction of the new provision. The main purpose of setting up a counter-claim is to prevent multiplicity of proceedings between parties. Order VIII, Rule 6A, C.P.C. does not say as to who shall be parties to the counter-claim. It has to be undoubtedly against the claim of the plaintiff. It is also true that the defendant cannot raise a counter-claim against the co-defendants alone. The counter-claim necessarily has to be between the parties to the suit which means between the plaintiff and the defendants and for that purpose, if third parties are also necessary for considering the question of counter-claim, they also can be impleaded as additional defendants in the counter-claim. The plaintiff is the master of his suit, beyond doubt, and has liberty to add or delete anyone from the party array of the plaint. But equally true is it in a case of a counter-claim, which is as good as a plaint filed by the defendant against the plaintiff and may be some others as well. Hence, I find that the application for impleadment has to be allowed. But the plaintiff has the right to say that the defendant cannot insist on impleading other defendants in his plaint. But nothing prevents the defendant who raises a counter-claim from impleading additional defendants in his counter-claim. Hence the additional defendants are to be impleaded in the counter claim and not in the plaint. To this effect the impugned order is modified.

15. Whether the counter-claim is to be proceeded along with the suit or whether it has to be relegated to a separate suit as contemplated under Order VIII, Rule 6C, has to be considered by the Court below. With these observations, the petition is disposed of. No order as to costs.


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