Bombay High Court Dismisses Appeal Against Dismissal of Counter Claim Directed Solely Against Co-Defendants. Counter Claim Must Be Directed Against Plaintiff Under Order 8 Rule 6A of Code of Civil Procedure, 1908.

High Court: Bombay High Court Bench: GOA
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Case Note & Summary

The appellant, defendant no.7 in Regular Civil Suit No. 8/1984, filed a counter claim against the Government of Goa (a co-defendant) after the original suit was dismissed for default. The counter claim was dismissed by the trial court. The appellant appealed to the High Court of Bombay at Goa. The sole legal issue was whether a counter claim directed solely against co-defendants is maintainable. The High Court, relying on the Supreme Court's decision in Rohit Singh & Ors. v. State of Bihar (now State of Jharkhand) & Ors. (2006(12) SCC 734), held that a counter claim must be directed against the plaintiff, though it may incidentally seek relief against co-defendants. A counter claim directed solely against co-defendants cannot be maintained, as it would convert the litigation into an interpleader suit. The High Court dismissed the appeal, upholding the dismissal of the counter claim.

Headnote

A) Civil Procedure - Counter Claim - Maintainability - Counter Claim Directed Solely Against Co-Defendants - Code of Civil Procedure, 1908, Order 8 Rule 6A - The appellant-defendant filed a counter claim only against co-defendants (Government of Goa) after the original suit was dismissed for default. The Supreme Court in Rohit Singh v. State of Bihar held that a counter claim must be directed against the plaintiff, though it may incidentally seek relief against co-defendants, but a counter claim directed solely against co-defendants cannot be maintained. The High Court dismissed the appeal, affirming that the counter claim was not maintainable. (Paras 2-3)

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Issue of Consideration

Whether a counter claim directed solely against co-defendants can be maintained in a civil suit.

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Final Decision

The High Court dismissed the appeal, holding that the counter claim directed solely against co-defendants was not maintainable.

Law Points

  • Counter claim must be directed against the plaintiff
  • not solely against co-defendants
  • Counter claim cannot convert litigation into interpleader suit
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Case Details

2010 LawText (BOM) (04) 117

First Appeal No. 194 of 2000

2010-04-13

N.A. Britto, J.

2010:BHC-GOA:791

Mr. A.F. Diniz for Appellant, Mr. G. Shirodkar for Respondent No.1

Communidade of Pirla, by its attorney Shri Dottu @ Dayanand Ananta Fal Dessai

1. Government of Goa by Forest Department, 2. Communidade of Provincia De Balli, 3. Shri Chandrakant Uttoma Chodankar, 4. Shri Vinayak Dharma Chodankar, 5. Union of India, 6. Union Territory of Goa, Daman & Diu

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Nature of Litigation

Appeal against dismissal of counter claim in a civil suit.

Remedy Sought

Appellant sought to challenge the dismissal of its counter claim against the Government of Goa.

Filing Reason

The appellant's counter claim was dismissed by the trial court.

Previous Decisions

The original suit (Regular Civil Suit No. 8/1984) was dismissed for default. The counter claim filed by defendant no.7 (appellant) was also dismissed.

Issues

Whether a counter claim directed solely against co-defendants is maintainable under the Code of Civil Procedure, 1908.

Submissions/Arguments

Appellant argued that the counter claim was maintainable. Respondent (Government of Goa) argued that the counter claim was not maintainable as it was directed solely against co-defendants.

Ratio Decidendi

A counter claim must be directed against the plaintiff in the suit, though it may incidentally seek relief against co-defendants. A counter claim directed solely against co-defendants cannot be maintained, as it would convert the litigation into an interpleader suit.

Judgment Excerpts

Normally, a counterclaim, 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 the co-defendants in the suit. But a counterclaim directed solely against the co-defendants cannot be maintained.

Procedural History

The original suit (Regular Civil Suit No. 8/1984) was dismissed for default. The appellant, defendant no.7, had filed a counter claim against the Government of Goa (co-defendant). The counter claim was dismissed. The appellant filed First Appeal No. 194 of 2000 before the High Court of Bombay at Goa against the dismissal of the counter claim.

Acts & Sections

  • Code of Civil Procedure, 1908: Order 8 Rule 6A
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