Summary
In a suit by a co-owner to declare void an agreement to sell executed by the other co-owner, the purchaser (a co-defendant) sought to file a counter-claim for specific performance and partition. The Supreme Court restored the Trial Court's rejection: a counter-claim under Order VIII Rule 6A CPC must be directed against the plaintiff and cannot be directed solely against a co-defendant, and it cannot be brought in after the issues are framed.
Issues
- Whether a defendant can, under Order VIII Rule 6A CPC, set up a counter-claim for specific performance directed solely against a co-defendant (represented by a court-appointed Nazir) rather than against the plaintiff.
- Whether a counter-claim could be permitted long after the filing of the suit and after the issues had been framed.
- Whether the High Court properly interfered under Article 227 with the Trial Court's order rejecting the counter-claim.
Provisions considered
- Order VIII Rule 6A, Code of Civil Procedure, 1908The Court read the rule as permitting a counter-claim only against the claim of the plaintiff, in respect of a cause of action accruing to the defendant against the plaintiff; a counter-claim directed solely against a co-defendant is not maintainable, and its outer limit in time is the framing of issues. (¶¶ 17, 18, 19, 20, 21, 22, 24)
- Article 227, Constitution of IndiaThe Court noted that the High Court's reasoning did not show how any jurisdictional error arose warranting supervisory interference, and that the Trial Court's order was correct in law and on facts. (¶¶ 13, 14, 15)
Held
- A counter-claim is treated as a cross-suit and plaint, intended to avoid multiplicity of proceedings; it may rest on a cause of action different from the suit, but it must necessarily be directed against the plaintiff. Relief may incidentally be claimed against co-defendants, but a counter-claim directed solely against a co-defendant is not maintainable. (¶¶ 19, 20, 21)
- The purchaser's claim for specific performance against the estate of the deceased vendor-defendant, through the Nazir, was directed solely against a co-defendant and could not be raised by way of counter-claim. (¶ 22)
- The added prayer for partition did not save the counter-claim: the purchaser had first to establish a right over the property by succeeding against the vendor's estate, and only then could any claim against the plaintiff arise. (¶ 23)
- Following Ashok Kumar Kalra, although Order VIII Rule 6A sets no express time limit, a counter-claim must comply with limitation and the outer limit for filing it is the framing of issues. Here the purchaser took no step on the 2011 agreement, even after the plaintiff's 2012 suit challenging it, and applied only well after issues had been framed. (¶¶ 24, 25)
- A trial of a claim to enforce an agreement to sell is qualitatively different from the plaintiff's suit for a declaration that the co-owner could not alienate the property; the High Court erred in holding that the cause of action arose only on appointment of the Nazir and in permitting the counter-claim against the co-defendant. (¶¶ 15, 26, 27)
Result
Appeal allowed; the High Court's judgment dated 16.01.2023 in SCA No. 12701 of 2021 set aside and the Trial Court's rejection of the application to amend the written statement and file a counter-claim restored; no order as to costs.