Case Note of Sarojini Amma and Ors. v. Dakshyani Amma and Ors.

FACTS

The Respondents in the present case filed a case before the Mursiff's Court, Wadakkancherry
for a permanent prohibitory injunction to restrain the Petitioners (in present case) from
causing alteration of a pathway and to restore a waterchal to its original position. The
Respondents filed a counter claim against the Respondents 1 and 2 as well as the R.D.O and
P.W.D (Roads) Assistant Executive Engineer, the latter being the custodians of puramboke
property. The subordinate Court below considered the maintainability of the counter-claim
under issue No. 1 and observed that it cannot be canvassed against persons, who are not
parties to the suit-against total strangers to the suit and accordingly found that the counter
claim was not maintainable as against Respondents 3 and 4, whose names were ordered to be
struck out from the party array by order dated 25th January 1994, which is under challenge in
this revision.

ISSUES RAISED

1. Whether counter claims could be allowed against the person who were party to original
dispute?
2. Whether Order I, Rule 10 Code of Civil Procedure would also apply to counter-claim?

ARGUMENTS ADVANCED BY THE LD. APPELLANTS

According to the Petitioners, since the counter claim has to be treated as plaint in a cross-suit
it is governed by the rule applicable to a plaint. On the wording of Rule 6A of Order VIII
Code of Civil Procedure "any right or claim in respect of a cause of action accruing to the
Defendant against the plaint 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" can be set up by way of counter-claim and this would include rights that have
accrued incidentally against a third party also. It may sometimes become necessary that
adjudication of the counter-claim made against the Plaintiff may have to be done in the
presence of a third party to give a finality to the controversy.

ARGUMENTS ADVANCED BY LD. RESPONDENTS

The respondents submitted that the maintainability of the counter-claim under issue No. 1 and
observed that it cannot be canvassed against persons, who are not parties to the suit-against
total strangers to the suit and accordingly found that the counter claim was not maintainable
as against Respondents 3 and 4, whose names were ordered to be struck out from the party
array by order dated 25th January 1994, which is under challenge in this revision.

FINDINGS BY KERALA HC

The court held that the main purpose of setting up a counter-claim is to prevent multiplicity
of proceedings between the parties. As observed already, it has to be treated as a plaint 1 and is
governed by the rules applicable to it. It has to contain the particulars as in Order 8, Rule 1
Code of Civil Procedure among other requirements. Indeed "plaint" has not been statutorily
defined. But it should contain necessary and relevant facts constituting the cause of action.
The counter-claim need not necessarily be confined to the claim made against the Plaintiff,
and if for its effective adjudication besides the Plaintiff, other interested persons should be
made parties, they could be impleaded, if the Court is satisfied that without them the
adjudication will be incomplete.

Order 8, Rule 6A Code of Civil Procedure does not say as to who shall be parties to the
counter-claim. According to the court the provisions as to joinder of parties under Order I,
Rule 10 Code of Civil Procedure would also apply to counter-claim, no doubt, subject to the
condition that persons impleaded are necessary and proper parties for an effective
adjudication of the questions involved. Moreover, the court ruled that Order 8, Rule 6A does
not enable the participation of persons who are not already parties to the suit is difficult to
accept.

1
Order 8 Rule 6A CPC