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PETITIONER: GURBACHAN SINGH

       Vs.

RESPONDENT: BHAG SINGH & ORS.

DATE OF JUDGMENT24/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR 1087            1996 SCC  (1) 770  JT 1995 (9)   208        1995 SCALE  (7)293

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The petitioner  and the 8th respondent had filed a suit for perpetual  injunction restraining the respondents 1 to 7 from dispossessing  them from the suit land or part thereof. Respondents/defendants   filed    the   written    statement contending that  the petitioner  and the  8th respondent had trespassed into their land of an extent of 3 kanals and they are in  unlawful possession.  Thereby, they  raised  counter claim, in  the written  statement, for possession. The Trial Court, while dismissing the suit of the petitioners, granted decree for  possession of  two kanals,  two marlas  and  one biswas  comprising  survey  numbers  mentioned  therein.  On appeal, it  was confirmed and the High Court confirmed it in R.S.A. No.1190/94  on May  18, 1995. Thus this Special Leave Petition.      The contention raised in the courts below was that in a suit for perpetual injunction, the respondents could not lay any counter  claim for  possession. Order  8 Rule 6(A)(1) of the C.P.C., 1908 as amended in 1976 reads thus:      "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 plaintiffs, 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:-      Provided that  such counter-claim  shall      not exceed  the pecuniary  limits of the      jurisdiction of the Court."

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It is  true that  Rule 6A(a) was introduced by Amendment Act of 1976.  Preceding the  amendment, it  was settled law that except in  a money claim, counter claim or set off cannot be set up  in other  suits. The  Law Commission  of  India  had recommended, to avoid multiplicity of the proceedings, right to the  defendants to  raise the plea of set off in addition to a  counter claim  in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter claim or set off  had accrued to defendant either before or after the filing of  the suit.  The limitation  was that  the  counter claim or  set off  must be  pleaded by way of defence in the written statement  before the  defendant filed  his  written statement or  before  the  time  limit  for  delivering  the written statement has expired, whether such counter-claim is in the  nature of  a  claim  for  damages  or  not.  Further limitation was  that the counter-claim should not exceed the pecuniary limits  of the jurisdiction of the court. In other words, by laying the counter claim pecuniary jurisdiction of the court  cannot be  divested and the power to try the suit already entertained  cannot be  taken away  by accepting the counter  claim  beyond  its  pecuniary  jurisdiction..  Thus considered, we  hold that  in a  suit  for  injunction,  the counter-claim for  possession also  could be entertained, by operation of Order 8 Rule 6 (A)(1) of CPC.      It is sought to be contended that the counter-claim was not filed  within the  time given  for laying  the same.  It would appear  from the  list  of  the  dates  given  by  the petitioner himself  that the  counter-claim was filed within two months from the date of the suit itself.      Under these  circumstances, the  special leave petition is dismissed.