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2019 M L D 1244
[Sindh]
Before Adnan Iqbal Chaudhry, J
MANZOOR AHMED SHAHZAD---Plaintiff
Versus
MUHAMMAD SHAKIR SHAN and 5 others---Defendants
Suit No. 370 of 2005 and C.M.A. No.1222 of 2011, decided on 15th August, 2018.
Civil Procedure Code (V of 1908)---
----O. VIII, R. 6 & O. XX, R. 9---Sindh Chief Court Rules (O. S.), R. 162---
Specific Relief Act (I of 1877), Ss. 39 & 12---Suit for cancellation of agreement to
sell---Counter-claim made in the written statement for specific performance of sale
agreement---Maintainability---Plaintiff filed suit for cancellation of agreement to
sell wherein defendant made counter-claim with additional prayer for specific
performance of sale agreement---Contention of plaintiff was that counter-claim
could be made only in a money suit---Validity---Although counter-claim
(incorporated in written statement), which was not a set-off was not permitted
under O.VIII, R. 6, C.P.C., the court could nonetheless construe such counter claim
as a plaint of a cross-suit---Written statement of defendant which incorporated the
counter-claim did contain all the necessary requisites sufficient to be treated as a
plaint in a suit of specific performance of subject sale agreement---Plaintiff had not
been afforded an opportunity to reply the said counter-claim---Plaintiff was allowed
to file reply to the counter-claim, in circumstances.
Civil Aviation Authority Quaid-e-Azam International Airport v. Japak
International (Pvt.) Ltd. 2009 SCMR 666 and Niamat Ali v. Dewan Jairam Dass
PLD 1983 SC 5 rel.
Kashif Paracha for Plaintiff.
Zayyad Khan Abbasi for Defendants Nos.1 to 4.
Muhammad Sadiq for Defendants Nos.5 and 6.
Dates of hearing: 24th April and 23rd May, 2018.
ORDER
on C.M.A. No. 1222 of 2011
ADNAN IQBAL CHAUDHRY J.---The subject matter of the suit is a sale
agreement for immovable property dated 16-12-2004 between the plaintiff as seller
and the defendants 1 to 4 as buyers. The defendants 5 and 6 are estate agents who
brokered the said sale agreement. The plaintiff filed this suit for cancellation of the
sale agreement on the ground that he had been duped/mislead by the defendants
into signing the sale agreement. In filing a written statement to deny the allegations
in the plaint, the defendants 1 to 4 also made a "counter-claim" and "additional
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pleas", which was a prayer for specific performance of the sale agreement, and in
doing so the requisite court fee was also affixed to the written statement.
2. Issues were settled by the Court on 13-08-2007 and amongst the issues
settled, issue No.3 was "whether the defendants Nos.1 to 4 are entitled for specific
performance of agreement dated 16-12-2004 ?" This issue arose from the "counter-
claim" in the written statement.
3. By C.M.A. No.1222/2011, which is under Order XIV, Rule 5 C.P.C., the
plaintiff prays for striking out issue No.3. Mr. Kashif Paracha, learned counsel for
the plaintiff contended that under the Code of Civil Procedure the only provision
that allows for a counter claim is Order VIII, Rule 6, C.P.C., and under such
provision a counter-claim can only be made in a money suit which the present suit
is not. In support of such contention he relied upon the case of Civil Aviation
Authority, Quaid-e-Azam International Airport v. Japak International (Pvt.) Ltd.
(2009 SCMR 666). He therefore submitted that the said "counter-claim" ought to
have been ignored and consequently the aforesaid issue No.3 does not arise. In the
counter-affidavit to C.M.A. No.1222/2011 it was stated on behalf of the defendants
1 to 4 that the plea in the written statement is not a counter-claim but a plea for
specific performance of the sale agreement. Such statement in the counter-affidavit
was construed, albeit erroneously, by Mr. Paracha as an acknowledgment that there
was no counter-claim, and therefore he submitted that the matter should be put to
rest and the application to strike off the impugned issue should be allowed. Lastly,
Mr. Paracha contended that the plaintiff has been prejudiced by treating the written
statement also as a counter-claim because the plaintiff had never been given an
opportunity to reply to the said counter-claim.
On the other hand, apart from contending that the objection to the counter-claim
was raised at a belated stage only to stall the recording of evidence, Mr.
Muhammad Sadiq, learned counsel for the defendants 1 to 4, relied upon the case
of Niamat Ali v. Dewan Jairam Dass (PLD 1983 SC 5) to contend that a counter-
claim, even though not strictly covered by Order VIII, Rule 6, C.P.C., the Court can
nonetheless treat it as a plaint in a counter-suit. Mr. Zayyad Khan Abbasi, learned
counsel for the defendants 5 and 6 supported the submissions made by Mr.
Muhammad Sadiq, Advocate.
4. Order VIII Rule 6 of the Code of Civil Procedure, 1908 reads:
"6. (1) Particulars of set-off to be given in written statement. Where in a suit for
the recovery of money the defendant claims to set-off against the plaintiff's
demand any ascertained sum of money legally recoverable by him from the
plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court,
and both parties fill the same character as they fill in the plaintiff's suit, the
defendant may, at the first hearing of the suit, but not afterwards unless
permitted by the Court, present a written statement containing the
particulars of the debt sought to be set off.
(2) Effect of set-off. The written statement shall have the same effect as a plaint
in a cross-suit so as to enable the Court to pronounce a final judgment in
respect both of the original claim and of the set-off, but this shall not affect
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the lien, upon the amount decreed of any pleader in respect of the costs
payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written
statement in answer to a claim of set-off."
In the case of Niamat Ali v. Dewan Jairam Dass (PLD 1983 SC 5) it was held
that Order VIII, Rule 6, C.P.C. read with Order XX, Rule 19, C.P.C. permits a
counter-claim of a specific kind, i.e., where it is for an ascertained amount in the
plaintiff's suit for recovery of money, called a "legal set-off", or where it is for an
"equitable set-off" in which case a defendant may even seek a set-off in respect of
an unascertained sum of money on the principle that if there be some connection
between the plaintiff's claim for a debt and the defendant's claim to set-off, it will
be inequitable to drive the defendant to a separate suit. The distinction between a
legal set-off and a counter claim was discussed in the case of Niamat Ali as
follows:
"There is well-recognized distinction between a set-off and a counter claim.
Although in one sense both are identical inasmuch as they are cross actions
on the part of the defendant but a set-off is essentially a weapon of defence.
If the defendant succeeds in establishing it, it serves the purpose of
answering the plaintiff's claim either wholly or pro tanto because a set-off is
really a debt claimed by the defendant against the plaintiff to counter-
balance a debt claimed by the plaintiff against the defendant. A counter
claim, on the other hand, is essentially a weapon of offence and is not really
relevant as a plea in defence to the claim of the plaintiff. It enables a
defendant to enforce a claim against the plaintiff as effectually as in an
independent action. It's essential nature is that of a cross suit pleaded
through the means of the written statement in the same suit. Having regard
to these essential features of the character of a counter claim, it is plain that
a right to make a counterclaim is not admissible if it does not fall within the
ambit of Order VIII, Rule 6, C.P.C. or qualify as an equitable set-off."
"In view of the aforesaid, it is right for the learned counsel for the appellants to
contend that the counter claim of the respondents cannot be supported by the
provisions of Order VIII, Rule 6, C.P.C., or as an equitable set-off for the
simple reason that it is not a money claim, which is a common ingredient for
both kinds of set-off. It is an independent claim for possession sought to be
enforced by the defendant in his written statement. It has, however, been
held that although a counterclaim which is neither a legal set-off nor an
equitable set-off, yet there is nothing in law, statutory or otherwise, which
precludes a Court from treating a counter claim as a plaint, in a cross suit.
The reasons advanced in support of this view is that the Court has such a
power are that, although a counter claim incorporated in the written
statement does not conform to the requirements of the Code relating to
contents of a plaint, this by itself is not sufficient to deny the Court the
power and jurisdiction to read and construe the pleadings in a reasonable
manner, that the Court is not prevented from separating the written
statement proper from what was described as a counter-claim and treating
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the latter as a cross suit, and if the counter claim contains all the necessary
requisites sufficient to be treated as a plaint making a claim for the relief
sought, it would be open to a Court to convert or treat the counter-claim as a
plaint in a cross suit."
5. Thus, the case of Niamat Ali v. Dewan Jairam Dass (supra) had settled that
though a counter-claim (incorporated in a written statement) which is not a set-off,
is not permitted under Order VIII, Rule 6, C.P.C., the Court can nonetheless
construe such counter-claim as a plaint of a cross-suit. The case Civil Aviation
Authority, Quaid-e-Azam International Airport v. Japak International (Pvt.) Ltd.
(2009 SCMR 666), relied upon by Mr. Paracha had followed the case of Niamat Ali
v. Dewan Jairam Dass (PLD 1983 SC 5).
6. Having discussed that, it will be seen that the Sindh Chief Court Rules as
applicable to the Original Side of this Court, which Rules would prevail over the
Code of Civil Procedure, 1908 in terms of Rule 7 of the Sindh Chief Court Rules
(O.S.), categorically provide for a counter-claim in addition to a set-off that is dealt
with by Order VIII Rule 6 CPC. The relevant Sindh Chief Court Rules (O.S.) are :
"162. Counter claim, by defendant. (1) A defendant in a suit, in addition to be
right of pleading a set-off under O. VIII, rule 6 of the Code, may set up by
way of counter claim against the claims of the plaintiff any right or claim,
whether such counter claim sounds in damages or not.
(2) Subject to the provisions of rule 165, such counter claim shall have the same
effect as a cross-suit so as to enable the Court to pronounce final judgment
in the same suit, both on the original and on the counter claim.
163. Counter Claim. Where any defendant seeks to rely upon any grounds as
supporting the right of counter claim he shall, in his written statement, state
specifically that he does so by way of counter claim.
164. Reply to counter claim. Where a counter claim is made in a written
statement, plaintiff may deliver a reply to the counter claim within the time
within which he may deliver a written statement if the counter claim were a
plaint.
165. Excluding counter claim. Where a defendant sets up a counter claim, the
Court may on the application of the plaintiff made in that behalf at any stage
of the proceedings and after hearing the defendant, make an order directing
that the counter claim may be tried separately and may make such other
order as shall be just.
166. Proceeding with counter claim where action stayed. If in any case in which
the defendant sets up a counter claim the suit of the plaintiff is stayed,
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discontinued or dismissed, the counter claim may nevertheless be proceeded
with.
167. O.XX, R. 19 to apply to decree in such suits. Sub-rules (1) and (2) of rules
19 of Order XX of the Code shall apply to the decree in a suit in which
counter claim is made."
7. The above mentioned Sindh Chief Court Rules (O.S.) are a complete answer
to the objection raised by Mr. Kashif Paracha. When confronted with the aforesaid
Rules, in particular Rule 162, the fallback argument of Mr. Paracha was that even
then the counter-claim of the defendants 1 to 4 does not fulfill the requirements of a
plaint in a cross-suit as it lacks particulars for the relief of specific performance.
However, a perusal of the written statement of the defendants 1 to 4 which
incorporates the counter-claim shows that it does contain all the necessary
requisites sufficient to be treated as a plaint in a suit of specific performance of the
subject sale agreement.
8. For the foregoing reasons, the objections raised on behalf of the plaintiff to
the counter-claim of the defendants 1 to 4 are misconceived. The counter-claim of
the defendants 1 to 4 is maintainable and is expressly permitted in terms of Rule
162 of the Sindh Chief Court Rules (O.S.). Consequently, CMA No.1222/2011 is
dismissed.
As regards Mr. Paracha's contention that the plaintiff had never been given an
opportunity to reply to the said counter-claim, the order sheet of the Additional
Registrar shows that on 03-05-2005, four weeks' time was allowed to the plaintiff
to file a reply to the counterclaim, but no such reply was filed. However, since there
does not appear to be a subsequent order de-barring the plaintiff from filing such
reply, in the interest of justice, the plaintiff is allowed two weeks to file a written
statement to the counter-claim of the defendants 1 to 4 with a copy in advance to
the defendants 1 to 4.
ZC/M-35/Sindh Order accordingly.
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