High Court of Allahabad: Counter Claim Civil Suit Survives Independent of Main Civil Suit Withdrawal

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Published on: May 27, 2024 21:18 IST

Court: High Court of Allahabad

Case: Hulas Rai Baijnath v. K.B. Bass and Co. Ltd. 1961

Honourable High Court of Allahabad has held that a Counter Claim Civil Suit duly survives even if the Main Civil Suit is Withdrawn. It is held that a Counter Claim Civil Suit has the same effect as a cross suit. It is held that when the Original Civil Suit is withdrawn then the Counter Claim Civil Suit can stand independently as a plaint by itself.

It is an assertion of a particular right by the Defendant, who claims a relief against the Original Plaintiff and who values that particular relief for adjudication and pays necessary Court fees in accordance with such valuation.

It is held that Order 8 Rule 6 A(2) of Code of Civil Procedure, 1908 stipulates that the Court should pronounce a judgement not only on the suit but also on the counter claim.

8. The cases on which the petitioner relies have been discussed by my learned brother; they are distinguishable on facts. Each party in a suit for dissolution of partnership may be a plaintiff as observed in Devsey Khetsey v. Hirji Khairaj but it does not follow that each party in a suit for accounts is a plaintiff.

In a suit for dissolution of partnership each party is a partner having a right to sue for dissolution, but, as I pointed out above, each party in a suit for accounts has not a right to sue the other for accounting. Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi does not help the petitioner because the transposition is not shown to be required in the ends of justice. In a suit for accounts there may be an undertaking by the plaintiff to pay to the defendant if anything is found to be due to him, as stated in Parmanand v. Jagat Narain, but there is no undertaking by him to continue the suit to the end and he can avoid the taking of accounts by withdrawing it. In McGown v. Middleton the plaintiff was not debarred from withdrawing the suit; A counter claim can be heard even if the suit is withdrawn, but there is no counter claim by the petitioner in the present suit. The C.P.C. recognises set-off and not counter claims, and the petitioner has not claimed even a set-off. …………….. The English law does not permit the withdrawal of a suit after a general verdict of the jury and Stahlschmidt v. Walford was decided on the footing that an award by an arbitrator was like a general verdict of a jury. Moreover, under the English law it was at the discretion of the court to allow the discontinuance of a suit; not so under the C.P.C. ………………

Drafted By Abhijit Mishra

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