Case Note & Summary
In the Supreme Court of India, a special leave petition arose from concurrent judgments of the trial court, first appellate court, and High Court. The original plaintiffs (petitioner Gurbachan Singh and another, later respondent No.8) had filed a suit for perpetual injunction to restrain defendants (respondents 1 to 7) from dispossessing them from suit land. The defendants in their written statement alleged that the plaintiffs had trespassed into their land measuring 3 kanals and were in unlawful possession; accordingly, they set up a counter-claim for possession. The trial court dismissed the plaintiffs' suit and granted a decree for possession of two kanals, two marlas and one biswas in favour of the defendants. The first appellate court confirmed the decree, and the High Court dismissed the second appeal R.S.A. No.1190/94 on May 18, 1995. The petitioner then approached the Supreme Court challenging the maintainability of the counter-claim in a suit for perpetual injunction. The core legal issue was whether a defendant in an injunction suit could raise a counter-claim for possession under Order 8 Rule 6A(1) of the Code of Civil Procedure, 1908, as amended in 1976. The petitioner contended that prior to the 1976 amendment, the settled law permitted counter-claim or set-off only in money claims, and therefore a counter-claim for possession in an injunction suit was not permissible. The Supreme Court examined Rule 6A(1) and the legislative background. It noted that the Law Commission of India had recommended the introduction of a counter-claim to avoid multiplicity of proceedings, allowing defendants to raise a counter-claim in addition to set-off in the same suit irrespective of whether the cause of action accrued before or after the filing of the suit. The provision expressly permits any right or claim in respect of a cause of action accruing to the defendant against the plaintiff, whether such counter-claim is in the nature of a claim for damages or not, subject to two limitations: the counter-claim must be pleaded by way of defence in the written statement before the defendant has delivered his defence or before the time limited for delivering the defence has expired; and the counter-claim must not exceed the pecuniary limits of the court's jurisdiction. The Court held that in a suit for injunction, a counter-claim for possession could be entertained by operation of Order 8 Rule 6A(1) CPC. On the second contention regarding late filing, the Court perused the list of dates furnished by the petitioner himself and found that the counter-claim was filed within two months from the date of the suit, which was within the permitted time. Consequently, the special leave petition was dismissed. The Supreme Court affirmed the decisions of the courts below and upheld the decree for possession in favour of the defendants. The legal principle settled is that Order 8 Rule 6A(1) CPC has broadened the scope of counter-claim, making it available in all suits, not just money suits, provided the statutory conditions are satisfied.
Headnote
A) Civil Procedure - Counter-Claim - Order 8 Rule 6A(1) CPC - Counter-Claim in Perpetual Injunction Suit - In a suit for perpetual injunction, a defendant may set up a counter-claim for possession because the 1976 amendment to CPC removed the earlier restriction that counter-claim or set-off could only be in money claims, and now any right or claim can be pleaded as a counter-claim irrespective of the nature of the suit. The Court examined Rule 6A(1) and held that the only limitations are that the counter-claim must be pleaded in the written statement before the time limited for delivering defence has expired and must not exceed the pecuniary jurisdiction of the court. Held that a counter-claim for possession is maintainable in an injunction suit (Paras 1-2). B) Civil Procedure - Counter-Claim - Time Limit for Filing - Order 8 Rule 6A(1) CPC - A counter-claim must be set up before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The petitioner contended that the counter-claim was not filed within the given time, but the Court perused the list of dates furnished by the petitioner himself and found that the counter-claim was filed within two months from the date of the suit. Held that the counter-claim was timely filed, and the special leave petition was dismissed (Paras 1-2).
Issue of Consideration
Whether a defendant in a suit for perpetual injunction can set up a counter-claim for possession under Order 8 Rule 6A(1) of the Code of Civil Procedure, 1908; and whether the counter-claim in the present case was filed within the time permitted by law.
Final Decision
Special Leave Petition dismissed. The Supreme Court held that in a suit for injunction, a counter-claim for possession could be entertained under Order 8 Rule 6A(1) CPC. The counter-claim was filed within two months from the date of suit, thus within time. Concurrent decrees of the courts below granting possession to the defendants were upheld.
Law Points
- Order 8 Rule 6A(1) CPC permits counter-claim in any suit including suit for perpetual injunction
- counter-claim can be for possession
- counter-claim must be pleaded in written statement before time limit for delivering defence expires
- counter-claim cannot exceed pecuniary jurisdiction of court
- amendment of 1976 intended to avoid multiplicity of proceedings
