Supreme Court: Defendant can not file counter claim solely against the co-defendants

Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counterclaim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained. By filing a counter-claim the litigation cannot be converted into some sort of an inter-pleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land involved was a notified forest in the possession of the State. Such a counter-claim, in our view, should not have been entertained by the trial court. {Para 17}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4517-18 of 2006.

Decided On: 17.10.2006

Rohit Singh and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and P.K. Balasubramanyan, JJ.

Author: P.K. Balasubramanyan, J.

 Citation: 2006 INSC 706, MANU/SC/4619/2006,(2006) 12 SCC 734.

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Whether a person can seek that he be added as party to a suit if there is any dispute between him and defendant?

 Point No. (i):- The interveners mainly contended that the property has wrongly been sold by Mahabir Singh his uncle even including the share of the intervener in favour of the defendant 1st party. In fact the intervener are the real owner and in possession of the property of their share. The sale deed is illegal sale deed. So far these allegations are concerned, there is nothing on record in support of these facts. According to the defendants, the properties were sold by Mahabir Singh who was one of the settlee. Now, therefore, this dispute raised by the intervener is dispute between defendants because if the intervener will be added, they will be defendant in the suit. In my opinion, therefore, the inter se dispute between the defendants cannot be decided in a suit filed by the plaintiff appellant. Order 1 Rule 10 CPC speaks about the jurisdiction of the Court and not the right of a party for being added as defendant. If the intervener are not necessary party and in absence of the interveners, if the dispute raised between the parties can be effectively decided by the Court, the Court should not add a person whose presence is not required for just decision of the case. Here, as stated above, the plaintiff approached the Court with a particular case which was denied by the defendants. This dispute is to be decided and the trial Court has dealt with the controversy between the plaintiff and the contesting defendants. Now, these interveners are raising another controversy against the contesting defendants for which neither there is any pleading nor there is any evidence. In such circumstances, for the purpose of setting aside the Judgment and Decree, the intervener cannot be added as a party after such a long period. The suit is of the year 1976 and the application has been filed in this First Appeal in the year 2015, i.e., after 39 years. Further the dispute as to whether the plaintiff has got title or not can very well be decided in absence of these interveners because they are not saying anything against the plaintiff but are making allegation against the contesting defendant. In my opinion, therefore the interveners are not at all necessary party and accordingly, this intervention application, i.e., I.A. No. 3490 of 2015 is hereby rejected. {Para 15}

IN THE HIGH COURT OF PATNA

First Appeal No. 530 of 1982

Decided On: 07.07.2015

Sahood Alam and Ors.  Vs. Nayyer and Ors.

Hon'ble Judges/Coram:

Mungeshwar Sahoo, J.

Citation: MANU/BH/0423/2015.

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Whether the transfer of Agricultural land is totally prohibited as Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act?

  At the outset, we may say that there is dichotomy between the contention of the first Respondent/ the second Defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9(1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word 'transfer' is not defined under the Fragmentation Act though the expression 'land' has been defined thereunder. As per Section 2(5) of the Fragmentation Act, the term 'land' means, 'agricultural land whether alienated or unalienated'. {Para 15}

It will not be inappropriate to look into the object of the Fragmentation Act, in the context of the contentions. It runs as under:

Whereas it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof;

18. Thus, obviously, it is not the object or purpose of the Fragmentation Act to totally prohibit or prevent transfer of land within any notified 'local area', but it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 930 of 2023 

Decided On: 04.05.2023

 Damodhar Narayan Sawale (D) through L.Rs.  Vs. Tejrao Bajirao Mhaske and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0535/2023.

Read full Judgment here: Click here

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Whether Fragmentation Act is applicable if sale transaction was not intended to be acted upon?

As a matter of fact, the very applicability of the Fragmentation Act itself on sale transactions would depend upon the question whether the area in question falls under a Municipal Council or not and if it does not, then on the further question as to whether it falls within a 'local area' notified under the Fragmentation Act. Above all, the case attempted to be projected and proved by the second Respondent is that in regard to sale deed dated 04.07.1978 and the sale deed dated 21.04.1979 (Ext.128) they were never intended to be acted upon and in fact, they were never been acted upon. If that is accepted, then, there is absolutely no question of applicability of the provisions of 'the Fragmentation Act' as they would apply only in the eventuality of an actual transfer of land or partition of land subject to the satisfaction of other conditions. {Para 22}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 930 of 2023 

Decided On: 04.05.2023

 Damodhar Narayan Sawale (D) through L.Rs.  Vs. Tejrao Bajirao Mhaske and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0535/2023.

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When court should exclude counter claim filed by defendant?

Although it has been the contention of Shri Ramani, learned Advocate for the petitioner that the sale deeds were executed by the defendants No. 1-32 in favour of the defendant No. 33 and the plaintiff was seeking the relief of declaration in respect of the said deeds, the petitioner was claiming right through one Gama by a sale deed of 2007 who in turn claimed rights to the suit properties vide a document of 1939. All these aspects would have a material bearing in his estimation on the decision of the counter-claim qua the suit. Howsoever palatable the contention, the counter-claim as framed is apparently directed against the defendants, though a declaratory relief has been claimed to seek a declaration that the Sale Deeds are null and void. If at all the case of Shri Ramani, learned Advocate is to be accepted that the petitioners are claiming an independent right, the remedy to them would be by way of a separate suit and not by raising the counter-claim. There is otherwise force in the contention of Shri A.D. Bhobe, learned Advocate that the plaintiff would be embarrassed in the course of the trial and which would have the effect of unnecessary delay of the trial in the proceedings. Moreover the relief of injunction sought to include the plaintiffs is only as a camouflage to bring the action within the cause of action to maintain the counter-claim when otherwise the reliefs are sought against the defendants when the pleadings are construed in a proper manner. There is also force in the contention of Shri Rohit Bras De Sa, learned Advocate that the relief in the counter-claim is primarily aimed against the respondent No. 55. Moreover no prejudice has been shown to be caused to the petitioner by the exclusion of the counter-claim which can be very well pursued as an independent proceeding at the instance of the petitioners.

14. The learned trial Judge while deciding the application has on an assessment on the material on record clearly observed that the counter-claim is mainly directed against the defendants and no cause of action is made out against the plaintiffs and whatever relief sought against the plaintiffs is only to camouflage the counter-claim to save it from being executed. No perversity is writ large in the order under challenge as to call for an interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 902 of 2017

Decided On: 01.03.2019

Malaga Realtors Private Limited Vs. Vilas Pundalik Malik and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: 2019(4) MHLJ 883

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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

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When doctrine of Res judicata will be applicable between co-defendants?

 It is true that Under Section 11 of the Code of Civil Procedure, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate as res judicata between the Plaintiff and the Defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is Plaintiff or Defendant. In other words, if a Plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the Plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. This Court in the case of Mahboob Sahab v. Syed Ismail and Ors. MANU/SC/0698/1995 : (1995) 3 SCC 693, considering the applicability of the doctrine of res judicata between co-defendants held that the following four conditions must be satisfied, namely,

(1) there must be a conflict of interest between the Defendants concerned;

(2) it must be necessary to decide the conflict in order to give the reliefs which the Plaintiff claims;

(3) the question between the Defendants must have been finally decided; and

(4) the co-defendants were necessary or proper parties in the former suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5276 of 2008

Decided On: 23.10.2018

 Govindammal  Vs Vaidiyanathan and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and Mohan M. Shantanagoudar, JJ.

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Whether one defendant can object to amendment application filed by co-defendant?

The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:

Section 17- Admission - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are "any other party" and not necessarily an adverse party. It could be either the plaintiff or the defendant also.

The above discussion clearly goes to show that the codefendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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Whether defendants who are supporting plaintiff should adduce their evidence first?

 Lastly, in the basic judgment as , Shah Hiralal Himatlal and Ors. v. M.G. Pathak and Ors., while dealing with the provisions of Order 18 Rule 2, in cases where there are several defendants, some supports the plaintiff and some opposes the same, what should be the order of leading evidence or cross examination amongst such defendants, the principle as laid down is reproduced as under :

"4. So far as the defendants go, the question which of the defendants should begin has not been dealt with in Order 18, Civil Procedure Code. But on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiffs case. The order in which the defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in any part, that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows :

1. Those defendants who fully support the case of the plaintiff;

2. Those defendants who partly support the case of the plaintiff;

3. Those defendants who do not support the case of the plaintiff in any part."

Bombay High Court

Sunil Chhatrapal Kedar vs Y.S. Bagde And Anr. on 17 June, 2004

Equivalent citations: 2004 (4) MhLj 620,2005(1)ALLMR38

Bench: A V Mohta

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Whether defendant who supports case of plaintiff should directed to cross examine witness of plaintiff first?

Property - Testimony - Plaintiff had filed suit for partition against D-1 to D-5, for properties left father of Plaintiff by will - Hence, this Petition - Whether, Defendant no.1 or others Defendants could cross examine PW-1, only witness whose examination-in-chief was completed - Held, relying upon judgment in Shah Hiralal Himatlal and Ors. v. M.G. Pathak and Ors., party which supported case of Plaintiff partially or fully could cross examine witness of Plaintiff first - Defendants No. 3 and 4 were supporting case of Plaintiff both partially and fully respectively and therefore they could first cross examine PW-1 first rather than Defendant No. 1 - Petition allowed.

"Party, which supports case of Plaintiff, partially or fully, shall cross-examine witness of Plaintiff first."

THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) No.642/1993
Date of Decision : 09.11.2010

Mrs. Sarabjit Singh  Vs  Mr. Gurinder Singh Sandhu & Ors.

CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
Citation: 2011(121)DRJ102, (2011)ILR 1Delhi624

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When doctrine of res judicata is applicable between co-defendants?

 In the case reported as A.I.R.
(37) 1950 PC 17 (Chandu Lal v. Khalilur Rahaman) the
Privy Council has observed that doctrine of res judicata
applies as between parties who have been co-defendants
in a previous suit provided tests laid down by the Privy
Council are satisfied. The Privy Council has laid down
following three tests :-
(1) existence of conflict of interests between
co-defendants;
(2) the necessity to decide that conflict in
order to give the plaintiff the appropriate relief;
and
(3) decision given on the said question
between the co-defendants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.644 of 2004
 Gurudayalsing s/o Mehersing Bindra V Basant Singh s/o Mehersingh Bindra
CORAM: T.V. NALAWADE, J.
DATE : 21st APRIL 2014
Citation;2014 (4) ALLMR 692 Bom

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When principle of res judicata has been held to bind Co-plaintiffs?

It is true that under s. 11 C.P.C. when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiff or co-defendant. But for application of this doctrine between co-defendants four con- ditions must be satisfied, namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. Ibis is the settled law as held in SM. Sadat Ali Khan v. Mirza Wiquar Ali, AIR 1943 PC 115,Shashibushan Prasad Mishra v. Babuji Rai & Ors., 1969 (2) SCR 971; and Iftikhar Ahmed & Ors. v. Syed Meharban Ali, 1974 (2) SCC 151. Take for instance that if in a suit by 'A' against 'B & C', die matter is directly and substantially in issue between B & C, and an adjudication upon that matter was necessary to determine the suit to grant relief to 'A'; the adjudication would operate as res judicata in a subsequent suit between B & C in which either of them is plaintiff and the other defendant. in other words, if a plaintiff cannot get at his right without trying and deciding a can between co-defendants, the court will try and decide the case, and the co-defendants will be, bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co- defendants, the codefendants will not be bound as between each other.

9.Where the above four conditions did not exist the decree does not operate as res judicata. It must, therefore., be that all the persons who have right title and interest are made parties to the suit and that they should have knowledge that the right, tide and interest would be in adjudication and the finding or the decree therein would operate as a res judicata to their right, title and interest in the subject- matter of theformer suit. Even in their absence a decree could be passed and it may be used as an evidence of the plaintiffs title either accepted or negatived therein. The doctrine of res judicata would apply even though the party against whom it is sought to be enforced, was not eo-nomine made a party nor entered appearance nor did he contest the question. The doctrine of res judicata must, however, be applied to co- defendants with great care and caution. The reason is that fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the court by practicing fraud or collusion, be cannot be allowed to say that the matter is res judicata and cannot be re-opened. There can also be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record.

10. Therefore, in applying the doctrine of res judicata between co-defendant or co-plaintiff, care, must, of necessity, be taken by the courts to see that there must in fact be a conflict of interest between the codefendants or co-plaintiffs concerned and it is necessary to decide the conflict in order to give relief which the plaintiff in the suit claimed and the question must have been directly and substantially in issue and was finally decided therein

Supreme Court of India

Mahboob Sahab vs Syed Ismail & Ors on 23 March, 1995

Equivalent citations: 1995 AIR 1205, 1995 SCC (3) 693

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When defendant can cross examine co-defendants?

The Supreme Court has taken a view that, in appropriate cases, the Court can invoke the inherent powers to recall the witness for examination. The 

inherent powers of the Court are not affected by the provisions of Order XVIII Rule 17 of the C.P.C. Since the provisions of Sections 137 and 138 of 

the Indian Evidence Act, are interpreted by the Karnataka High Court, Chattisgarh High Court and by this Court also and view is taken that in 

appropriate cases, where the defendant demonstrates that the co- 

defendant's evidence would adversely affect his interest, cross examination 

of such co-defendant is permissible. 

Bombay High Court

Vinod S/o Khimji Lodaya v Muljibhai S/o Maujibhai Patel on 25 June, 2013

Bench: S. S. Shinde

Citation; 2013 (6) ALL M R 732

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Whether one defendant can adopt written statement filed by co-defendants by submitting pursis?

The defendant can raise counterclaim against the plaintiff in respect of cause of action accruing to the defendant either before or after filing of the suit, but before the defendant has delivered his defence. The phrase "delivering defence" is with reference to presentation of written statement. It is true that technically defendant No. 6 has not presented his written statement, however, he has adopted written statement presented by defendant No. 1 and defendant Nos. 1 and 7, respectively. In these circumstances, it would not be plausible to contend that there is no defence raised by defendant No. 6. Technically speaking, there is no written statement presented by defendant No. 6, however, he is entitled to adopt written statement presented by other defendants. It would, therefore, be too technical to contend that there is no defence raised by defendant No. 6 and as such he cannot raise counter-claim.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 1238 of 2008

Decided On: 15.01.2009


Nagnath Jagannath Lomate Vs.

 Narsing Sambha More and Ors.

Hon'ble Judges/Coram:
R.M. Borde, J.
Citation: AIR2009Bom133

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