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.
In the High Court of Andhra Pradesh
(Before V. Ramasubramanian, J.)
Jinendra Jewellers, v. B. Venkateswara Rao, S/o late
Second Appeal No. 896 of 2017
Decided on December 15, 2017
Citation: 2017 SCC OnLine Hyd 442 : (2018) 1 ALT 732 : (2018) 2 ALD 149
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