Nabakishore Sahu And Anr. vs State Of Orissa And Ors. on 22 July, 1991

Orissa High Court
Nabakishore Sahu And Anr. vs State Of Orissa And Ors. on 22 July, 1991
Equivalent citations: AIR 1992 Ori 303
Author: A Pasayat
Bench: A Pasayat


A. Pasayat, J.

1. Petitioners assail correctness of the order dated 10-5-1990 passed by the learned Subordinate Judge, Bhubaneswar, rejecting the prayer of plaintiffs for an order that the counter-claim filed by the defendants was to be excluded, as the claim raised ought not to be disposed of by way of counter-claim but in an independent suit in terms of rule 6-C of Order 8 of the Code of Civil Procedure, 1908 (in short ‘the Code’).

2. The refusal was made on the following background. Petitioners as plaintiffs have filed Title Suit No. 170 of 1987 which is pending adjudication in the court of the learned Subordinate Judge, Bhubaneswar. During pendency of the suit, defendant No. 3 filed an application for amendment of the written statement filed inter alia on the ground that he wants to set up a counterclaim in terms of Order 8, Rule 6C of the Code. The plaintiffs objected to the prayer for modification which was nevertheless allowed. After the counter-claim was admitted and the issues were settled, the prayer for exclusion as aforesaid was made. The learned Subordinate Judge was of the view that since similar objection of the plaintiffs to the prayer for amendment of the written statement in the form of counter-claim was raised and overruled, the present prayer for exclusion of the counter-claim based on identical premises was not maintainable.

3. The learned counsel for the petitioners submits that the conclusions are erroneous inasmuch as unrelated’ matters have been considered to be identical and therefore, the order of refusal is not maintainable. The learned counsel for opposite party No. 3, however, submits that the contentions being identical and since there was adjudication at the time of possibility of consideration of the same question again was ruled out.

4. The only point which needs resolution in this case is whether non-acceptance of objection to the prayer for amendment was sufficient to exclude consideration of the question whether the dispute can be settled in a counter-claim or by an independent suit.

5. A counter-claim is substantially a cross-suit. It enables a defendant to enforce a claim against the plaintiff as effectively as an independent action. Rule 6-A lays down a special procedure to separate a suit from the counter-claim wherever separation is called for. The object of enacting Rule 6-A is to reduce multiplicity of proceedings by providing causes of action and cross-claims similar in nature can be clubbed together and disposed of by a common judgment. While considering the desirability to accept the prayer for amendment, consideration of the Court centred round the primary question whether there was change in substratum of the dispute. It was not explicitly concerned with the question whether the claim is to be disposed of by way of counter-claim or an independent suit. The considerations are undoubtedly different. Merely because an amendment was permitted to bring in a counter-claim, it cannot be said that the question of its mode of disposal was also adjudicated notwithstanding a plea to that effect having been taken in the objection filed by the plaintiffs to the prayer for amendment. Therefore, the learned Subordinate Judge was not justified in refusing to consider the question on the grounds indicated. He shall now re-consider the application.

The revision application is, accordingly, disposed of.

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