Or.2, Rule 2 and Or.8, Rule 6 A of C.P.C - Dismissal of COUNTER CLAIM - is a decree and appeal is the only remedy -2015 S.C.(2014) MSK Law Reports 4.
whether an order of dismissal of the counter-claim being barred by
principles of Order 2, Rule 2 of the Code of Civil Procedure (C.P.C.) can
be set aside in exercise of revisional jurisdiction under Section 115 of
the C.P.C. or in exercise of power of superintendence under Article 227 of
the Constitution of India or is it required to be assailed by preferring an
appeal.
principles of Order 2, Rule 2 of the Code of Civil Procedure (C.P.C.) can
be set aside in exercise of revisional jurisdiction under Section 115 of
the C.P.C. or in exercise of power of superintendence under Article 227 of
the Constitution of India or is it required to be assailed by preferring an
appeal.
Apex court held
Order 8, Rule 6A deals with counter-claim by the defendant. Rule 6A(2)
stipulates thus:-
“(2) Such counter-claim shall have the same effect as a cross-suit so as to
enable the Court to pronounce a final judgment in the same suit, both on
the original claim and on the counter-claim.”
Rule 6A(3) enables the plaintiff to file a written statement. The
said provision reads as follows:-
“(3) The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period as may be
fixed by the Court.”
Rule 6A(4) of the said Rule postulates that the counter-claim shall
be treated as a plaint and governed by rules applicable to a plaint. Rule
6B provides how the counter-claim is to be stated and Rule 6C deals with
exclusion of counter-claim. Rules 6D deals with the situation when the
suit is discontinued. It is as follows:-
“R. 6D. Effect of discontinuance of suit. – If in any case in which the
defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded
with.”
On a plain reading of the aforesaid provisions it is quite limpid
that a counter-claim preferred by the defendant in a suit is in the nature
of a cross-suit and by a statutory command even if the suit is dismissed,
counter-claim shall remain alive for adjudication.
The purpose of the scheme relating to counter-claim is to avoid
multiplicity of the proceedings. When a counter-claim is dismissed on
being adjudicated on merits it forecloses the rights of the defendant. As
per Rule 6A(2) the court is required to pronounce a final judgment in the
same suit both on the original claim and also on the counter-claim. The
seminal purpose is to avoid piece-meal adjudication. The plaintiff can
file an application for exclusion of a counter-claim and can do so at any
time before issues are settled in relation to the counter-claim. We are
not concerned with such a situation.
In the instant case, the counter-claim has been dismissed finally by
expressing an opinion that it is barred by principles of Order 2, Rule 2 of
the CPC.
The question is what status is to be given to such an expression
of opinion. In this context we may refer with profit the definition of the
term decree as contained in section 2(2) of CPC:-
“(2) “decree” means the formal expression of an adjudication which, so far
as regards the Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of any question within [1][
* * *] Section 144, but shall not include –
any adjudication from which an appeal lies as an appeal from an order, or
any order of dismissal for default.
Explanation- A decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary
and partly final;”
Court may draw up a formal decree or may not, but if by virtue of the order
of the Court, the rights have finally been adjudicated, irrefutably it
would assume the status of a decree.
As is evincible, in the case at hand,
the counter-claim which is in the nature of a cross-suit has been
dismissed. Nothing else survives for the defendants who had filed the
counter-claim.
Therefore, we have no hesitation in holding that the order
passed by the learned trial Judge has the status of a decree and the
challenge to the same has to be made before the appropriate forum where
appeal could lay by paying the requisite fee. It could not have been
unsettled by the High Court in exercise of the power under Article 227 of
the Constitution of India. Ergo, the order passed by the High Court is
indefensible.
Consequently, the appeal is allowed and the order passed by the High
Court is set aside. However, as we are annulling the order on the ground
that revision was not maintainable, liberty is granted to the respondents
to prefer an appeal before the appropriate forum as required under law.-2015 S.C.(2014) MSK Law Reports 4.
Order 8, Rule 6A deals with counter-claim by the defendant. Rule 6A(2)
stipulates thus:-
“(2) Such counter-claim shall have the same effect as a cross-suit so as to
enable the Court to pronounce a final judgment in the same suit, both on
the original claim and on the counter-claim.”
Rule 6A(3) enables the plaintiff to file a written statement. The
said provision reads as follows:-
“(3) The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period as may be
fixed by the Court.”
Rule 6A(4) of the said Rule postulates that the counter-claim shall
be treated as a plaint and governed by rules applicable to a plaint. Rule
6B provides how the counter-claim is to be stated and Rule 6C deals with
exclusion of counter-claim. Rules 6D deals with the situation when the
suit is discontinued. It is as follows:-
“R. 6D. Effect of discontinuance of suit. – If in any case in which the
defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded
with.”
On a plain reading of the aforesaid provisions it is quite limpid
that a counter-claim preferred by the defendant in a suit is in the nature
of a cross-suit and by a statutory command even if the suit is dismissed,
counter-claim shall remain alive for adjudication.
The purpose of the scheme relating to counter-claim is to avoid
multiplicity of the proceedings. When a counter-claim is dismissed on
being adjudicated on merits it forecloses the rights of the defendant. As
per Rule 6A(2) the court is required to pronounce a final judgment in the
same suit both on the original claim and also on the counter-claim. The
seminal purpose is to avoid piece-meal adjudication. The plaintiff can
file an application for exclusion of a counter-claim and can do so at any
time before issues are settled in relation to the counter-claim. We are
not concerned with such a situation.
In the instant case, the counter-claim has been dismissed finally by
expressing an opinion that it is barred by principles of Order 2, Rule 2 of
the CPC.
The question is what status is to be given to such an expression
of opinion. In this context we may refer with profit the definition of the
term decree as contained in section 2(2) of CPC:-
“(2) “decree” means the formal expression of an adjudication which, so far
as regards the Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of any question within [1][
* * *] Section 144, but shall not include –
any adjudication from which an appeal lies as an appeal from an order, or
any order of dismissal for default.
Explanation- A decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary
and partly final;”
Court may draw up a formal decree or may not, but if by virtue of the order
of the Court, the rights have finally been adjudicated, irrefutably it
would assume the status of a decree.
As is evincible, in the case at hand,
the counter-claim which is in the nature of a cross-suit has been
dismissed. Nothing else survives for the defendants who had filed the
counter-claim.
Therefore, we have no hesitation in holding that the order
passed by the learned trial Judge has the status of a decree and the
challenge to the same has to be made before the appropriate forum where
appeal could lay by paying the requisite fee. It could not have been
unsettled by the High Court in exercise of the power under Article 227 of
the Constitution of India. Ergo, the order passed by the High Court is
indefensible.
Consequently, the appeal is allowed and the order passed by the High
Court is set aside. However, as we are annulling the order on the ground
that revision was not maintainable, liberty is granted to the respondents
to prefer an appeal before the appropriate forum as required under law.-2015 S.C.(2014) MSK Law Reports 4.