Manatory injunction
jains
(Querist) 08 February 2020
This query is : Resolved
Suit is filed for recovery of amount of advance in a sale agreement. Possession of the property a rubber estate was handed over to the plaintiff on the day of agreement itself from which they taking income by tapping the rubber trees in it. Plaintiff doesn't want specific performance of the agreement. Their prayer is to recover the advance amount only. defendant approached the court with a petition to give a mandatory injunction against the plaintiff to stop taking yield and vacate the possession of the property. The property is scheduled as plaint schedule. Whether such a petition is maintainable or a separate suit is needed.
Raj Kumar Makkad
(Expert) 08 February 2020
Counter claim in such suits is maintainable and there is no need to file a separate suit for that purpose.
SHIRISH PAWAR, 7738990900
(Expert) 09 February 2020
Dear querist,
As per me court may not allow your prayer in plaintiff's suit. You may file another suit for injunction.
Regards,
Raj Kumar Makkad
(Expert) 09 February 2020
Pampara Philip vs. Koorithottiyil Kinhimohammad : AIR 2007 Kerala 69 and Shankar Masu Dokare vs. Shobha Subhash Dokare & Anr. : 2015 (2) Mh. L.J. 263.
Raj Kumar Makkad
(Expert) 09 February 2020
The provision of Order VIII Rule 6A CPC, which deals with counter claim by the defendant under sub-rule (2) provides that 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. Further provisions of Rules 6B to 6G deal with exclusion of counter claim, effect of discontinuance of suit, default of plaintiff to reply to counter claim, relief to defendant where counter claim succeeds and rules relating to written statement to apply to a written statement to be filed in answer to a counter claim.
In the case of Rajni Rani (supra) the Hon'ble Supreme Court while dealing with the issue pertaining to dismissal of a counter claim being barred by principle of Order II Rule 2 CPC and its setting aside in exercise of revisional jurisdiction or in exercise of power of superintendence or in appeal, inter alia came to the following conclusion:
"9.6 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. For making a counter-claim entertainable by the court, the defendant is required to pay the requisite court fee on the valuation of the counter-claim. The plaintiff is obliged to file a written statement and in case there is default the court can pronounce the Judgment against the plaintiff in relation to the counter-claim put forth by the defendant as it has an independent status. The purpose of the scheme relating to counter-claim is to avoid multiplicity of the proceedings. When a counter-claim is dismissed on (5 of 7) [CFA-166/2018] 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 counterclaim. The seminal purpose is to avoid piece-meal adjudication. The plaintiff can file an application for exclusion of a counterclaim 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.
Dr J C Vashista
(Expert) 10 February 2020
I concur the expert advise of Mr. Raj Kumar Makkar, move a counter claim before the same / appropriate Court of jurisdiction.
Dr J C Vashista
(Expert) 10 February 2020
@ Jains,
What is your locus standi / concern to the query ?
If you are a party what is the opinion and advise of the lawyer engaged / paid by you who is well aware about the facts and documents involved, an able, competent and intelligent enough to satisfy your questions and proceed.
However, if you have lost faith in your lawyer, change him/ her immediately.
Raj Kumar Makkad
(Expert) 11 February 2020
The author seems has put query on behalf of others and he is not involved in the case personally.
T. Kalaiselvan, Advocate
(Expert) 20 February 2020
The defendant while participating in the suit proceedings, has made a counter claim.
The counter claim is very maintainable.
In a judgment delivered by the Supreme Court held that there is no embargo on the filing of a counterclaim after filing of written statements under Order VIII Rule 6A of the Code of Civil Procedure (CPC). The outer limit for the same is till the framing of issues.
The Supreme Court has reiterated that a counter-claim cannot be filed after the issues are framed
Therefore if the counter claim had been filed before the issues were framed then it is very well maintainable.
