Maruti Nathu Salunkhe v. Vijay Bhalchandra Patil

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5878 OF 2018 Maruti Natu Salunkhe ...

Petitioner v/s.

Vijay B. Patil & ors.

...

Respondents Mr. Rajesh S. Datar for the petitioner.

Mrs. M.P. Thakur for respondents 1 to 4.

CORAM : DAMA SESHADRI NAIDU, J.

10th July 2019.

P.C.

The petitioner is the tenant; the respondents are the landlords. After taking a piece of vacant land on lease from the respondent's predecessor, the petitioner established a sugar-cane-juice shop. Later, there arose a dispute about the extent leased out. In that context, the tenant filed Civil Suit No.308 of 2014 for a declaration about the extent of land under lease and also for injunction. But the tenant chose to file a suit only against the original landlord's son and his daughterin-law-that son's wife. By then, in fact, the landlord died, survived by four children.

2. Pending the Suit, the successor landlords-that is, all the legal

2/3 9wp5878.18.doc heirs of the original landlord-filed R.C. Suit No.927/2014 for eviction. In the Suit, the petitioner as a defendant filed a counter-claim.

3. The landlords filed Ext.19 application before the Trial Court to exclude the tenant's counter-claim from the suit. They have, in that context, contended that the tenant has already filed an independent suit for whatever he is claiming in his counter-claim. Acting on that application, the Trial Court, through its order, dt.12.01.2018, rejected the tenant's counter-claim. Aggrieved, he has filed this writ petition.

4. Heard Shri Rajesh Datar, the learned counsel for the petitioner, and Mrs. M.P. Thakur, the learned counsel for respondents 1 to 4.

5. As seen from the impugned order, I reckon the Trial Court has rightly observed that the tenant in his Suit No.308 of 2014 has already sought the relief of declaration about the area under lease, besides seeking a prohibitory injunction. He cannot, then, seek an identical relief as a counter-claim in the landlords' suit for eviction.

6. There can be no multiple proceedings on a singular cause of action; in fact, a counter-claim is a suit within a suit for all practical purposes. It is separable from the plaintiff's claim; the defendant can enforce it through a cross-action. And the fate of the suit does not dictate the course of counter-claim. Through the 1976 Amendment, CPC had Rules 6-A to 6-G added to Order 8, to give statutory force to this common claim. Plainly put, the defendant can set up a counter-

3/3 9wp5878.18.doc claim on a cause of action which, in fact, gives him a right to file a separate suit. And, here, the tenant-defendant has already done thatonly a little early-before the landlords could initiate the eviction proceedings.

7. To be explicit, the defendant's counter-claim shall be treated as a plaint, and this gives a right to the plaintiff in the original suit to file his written statement. Pertinently, the court will decide the counterclaim on merits, unaffected by what happens to the suit-that is, even when the is stayed, dismissed, discontinued, or withdrawn. A counterclaim is not a quasi-suit; it is a suit proper. So I find no fault with the Trial Court's order impugned in this Writ Petition. At any rate, any procedure being only a facilitator for proper adjudication of a case, the defendant may, if he desires, request the Trial Court to try his suit and the landlords' suit together. (DAMA SESHADRI NAIDU, J) L.S. Panjwani, P.S.