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Author Topic: cross claim in miscellaneous petition allowed or not  (Read 762 times)

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Offline Madhvi

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cross claim in miscellaneous petition allowed or not
« on: March 22, 2016, 04:21:13 AM »
Hi,
I filed eviction suit against tenant, he filed written statement, cross examined my evidence but did not produce any evidence and then decree was obtained in my favor but it does not award any interest or damages pendente lite.
I have taken possession through execution but the decreed amount has not been received.

Now he has filed miscellaneous petition to set aside the decree under order 9 rule 13

I will be filing objections to his petition. My question is can I file a cross claim under order 8 rule 6A read with section 141 ?

Since section 141 allows all Miscellaneous Petitions to be tried with same procedure as suits as far as possible, can I file counter claim for damages and interest along with my objections to his petition ?

Thanks.

Offline rajgopal sripathi

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Re: cross claim in miscellaneous petition allowed or not
« Reply #1 on: March 22, 2016, 06:30:23 AM »
Absolutely yes. You can  file counter claim for damages and interest along with your objections to his petition
Rajgopal Sripathi
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email:rajgopal@legalwin.in

Offline Madhvi

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Re: cross claim in miscellaneous petition allowed or not
« Reply #2 on: March 22, 2016, 08:43:16 AM »
Thank you rajgopals,
I have been searching for any case numbers but could not find any examples for this.
I will search some more since your reply gives me lot of encouragement.
If you can point me to any cases it will help very much,
Regards to Everyone who reads this, please post if you have any citations or experience of counter claims in misc petitions,
Thanks.

Offline adv.amarnath

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Re: cross claim in miscellaneous petition allowed or not
« Reply #3 on: March 22, 2016, 09:45:16 AM »
I dont think that you have any right to file counter claim under Petition u/o 9 r13 of cpc filed by the defendant. Your claim for damage etc etc which was not been allowed, so you have to go for appeal in this regard not in that application. It is better to finish him off in the Order9 Rule 13 petition hearing. To be very frank with you, these days court are not passing any order for damages and others cost.
Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

Offline Madhvi

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Re: cross claim in miscellaneous petition allowed or not
« Reply #4 on: March 22, 2016, 11:43:07 AM »
Thank you adv.amarnath,
I had not asked for damages or interest in my plaint but the notice to the tenant mentioned interest. I got what I had asked in the plaint.
Now I think there is a good chance based on the behavior of tenant to get interest, further damages, unpaid electricity bill etc.
But technically I am not sure if that can be claimed as cross claim in his miscellaneous petition to set aside the decree. That is the reason I am asking here ...
What you mean I have no right ? It is allowed to file cross claim in miscellaneous petition, section 141 provides for applying same procedure as applied to suits to petitions filed under odder 9. So can a cross claim lie ?
Does anyone have any examples or any ideas on this topic ?
Thanks for the replies, much appreciated.

Offline adv.amarnath

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Re: cross claim in miscellaneous petition allowed or not
« Reply #5 on: March 22, 2016, 06:53:36 PM »
Section 11 of the CPC will bar you. When you are asking a procedure which never exists then how do you expect some citations in this regard. You can go through Civil Ready Reference. Further if the petition un/o9r13 allowed at any cost then your decree will be set aside and again it will be remand back. Once suit has been re-started then you can amend your plaint but counter claim in an application u/o9 r13 of CPC will not be entertained by court.

You have to think smartly than stereo type. First you have to fight to dismiss tenant's petition. If you able to dismiss the tenant's petition then there is no question of counter claim. Order 9 Rule 13 of CPC is not at all a plaint or written Statement. It is an mere application.
Regards,

Amarnath Sanyal
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Email - adv.amarnath.sanyal@gmail.com
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Offline Madhvi

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Re: cross claim in miscellaneous petition allowed or not
« Reply #6 on: March 22, 2016, 10:27:44 PM »
Thank you Adv Amarnath for your detailed reply,

Section 11 relates to Res judicata - since the cause of action for my claim arises after the filing of Misc petition as I am unable to alienate/enjoy or construct on the property as long as there is pending litigation and there is no loss to the xtenant when he prolongs litigation, it cannot be the same as the original suit isnt it ?

It is true that the petition is not a plaint, but section 141 of cpc provides for treating petition under order 9 as a suit. So what is my remedy to claim for damages arising due to his prolonged litigation ?

Thanks for taking the time to consider the details of my query and give correct answer, a little more clarification will help me to chose the best course of action,

Thanks.

Offline rajgopal sripathi

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Re: cross claim in miscellaneous petition allowed or not
« Reply #7 on: March 23, 2016, 12:36:10 AM »
Hi Madhvi
Hope this helps
Case reference : IN THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION, CIVIL APPEAL Nos.2308-2309 OF 2016,(Arising out of SLP(C)Nos.8536-8537 of 2008)
......
.......
......

It is in these circumstances, that we advert to Order VIII Rule 6A of the Code of Civil Procedure, which is being
reproduced below:
6A. Counter-claim by defendant - (1) A defendant in a suit may, in addition to his right of pleading a
set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim
in respect of a cause of action accruing to the defendant against the plaintiff either before or after
the filing of the suit but before the defendant has delivered his defence or before the time limited for
delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages
or not:
 Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(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.
(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.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for any doubt, that the cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence, namely, before the defendant has filed a written statement. The instant determination of ours is supported
by the conclusions drawn in Bollepanda P. Poonacha & Anr vs. K.M.Madapa (supra), wherein this Court observed as under:
11. The provision of Order 8 Rule 6-A must be considered having regard to the aforementioned
provisions. A right to file counterclaim is an additional right. It may be filed in respect of any
right or claim, the cause of action therefor, however, must accrue either before or after the filing of the
suit but before the defendant has raised his defence.

Hope this helps.
Rajgopal Sripathi
Mobile:9704772200
email:rajgopal@legalwin.in

Offline Madhvi

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Re: cross claim in miscellaneous petition allowed or not
« Reply #8 on: March 23, 2016, 02:26:50 AM »
Thank You MR Rajgopal for your second reply,
However, the cross claim in the case you provided was not in a Miscellaneous Petition but in the main suit.
I am asking about possibility of filing cross claim in the Miscellaneous Petition when the main suit has already been decreed.
Thank You.

Offline adv.amarnath

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Re: cross claim in miscellaneous petition allowed or not
« Reply #9 on: March 23, 2016, 11:34:25 PM »
Exactly, Order VIII Rule 6A of CPC is for defendant's counter-claim in written statement. Under which provision of CPC counter claim can be brought in the objection of application under Order 9 Rule 13 of CPC? I would also like to know supported with recent apex court judgements. Until and unless main suit is being restored then there is no opportunity to amend damages. Further Plaintiff cannot file Counter claim in a suit. whatever he claim has to be brought into the plaint under Order 6 Rule 17 of CPC.
Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

 

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