Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TR.P.(C.) 63/2022, CM APPL. 37260/2022
SHRI RAM DASS MALIK ..... Petitioner
Through: Mr Abhishek Singh, Mr. Surjeet
Singh Malhotra and Mr. Akshat
Choudhary, Advs. (through VC)
versus
SHRI RAJA BADAMI & ORS. ..... Respondents
Through: Ms. Uma Aggarwal and Mr. Pulkit
Aggarwal, Advs.
th
% Date of Decision: 28 September, 2022
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
J U D G M E N T
DINESH KUMAR SHARMA, J. (Oral)
CM APPL. 37261/2022 (exemption)
Exemption is allowed subject to all just exceptions.
TR.P.(C.) 63/2022
1. The present transfer petition has been filed by the petitioner seeking
transfer of civil suit bearing CS DJ No.775/2021 titled as Shri Raja
Badami and Ors vs. Shri Ram Das Malik .
2. The admitted facts are that initially the suit was filed by the
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respondent-plaintiff for possession and damages. In the said suit, the
petitioner herein filed a written statement along with the counter
claim. The petitioner set up a counter-claim that there was an oral
agreement to sell and the counter claim was valued at 2,75,00,000/-.
Petitioner further took a plea that since the counter claim exceeded the
jurisdiction of the learned Trial Court therefore, the matter may be
transferred to this Court.
3. Sh. Abhishek Singh, learned counsel for the respondent has raised two
fold objections. Learned counsel submits that firstly, the counter
claim being filed by the petitioner herein is not maintainable in view
of the proviso to Order 8 Rule 6 A which provides that the counter
claim shall not exceed the pecuniary limit of the jurisdiction of the
Court.
4. Learned counsel submits that since the counter claim was beyond the
pecuniary jurisdiction of the learned Trial Court, therefore, the same
itself is non-est in the eyes of law.
5. Learned counsel further submits that the petitioner has based his case
on an oral agreement to sell. It has been submitted that there has never
been an agreement and further oral agreement to sell has no value in
the eyes of law and the reliance has been placed upon Balram Singh
v. Kelo Devi , in Civil Appeal No. 6733 of 2022.
6. Learned counsel for the respondent submits that the transfer of the
entire suit with the counter claim will delay the trial. It has been
submitted that if the petitioner wants to pursue his claim, he can
independently file a separate suit before this Court.
7. Per contra , learned counsel for the petitioner submitted that since the
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counter claim has been filed, which is beyond the pecuniary
jurisdiction of the learned Trial Court. Therefore, the matter is
required to be transferred to this Court.
8. Learned counsel for the petitioner has relied upon the judgment of this
Court in “ Dr. Pritesh Kumar Singh v. Peepee Publishers &
Distributors (P) Ltd. & Anr .” 2015 SCC OnLine Del 11261.
9. Learned counsel submits that in Dr. Pritesh Kumar Singh (supra)
initially a suit was filed claiming damages of Rs. 19,000,00/- which
was pending before the learned ADJ, Patiala House Court. In that suit
the petitioner filed his written statement along with counter claim of
Rs. 25,00,500/- before the Court. In this background, the petitioner
relying on Order 8 Rule 6A sub Clause 2 CPC sought transfer of the
main suit as well as the counter claim being a cross suit to be tried by
the High Court because the valuation of the counter claim was more
than Rs.20,000,00/-.
10. This Court inter alia held that the Court can pronounce final judgment
in the suit and counter claim only if they have been tried together by
the same Court and since both the parties are claiming damages qua
each other, the matter can be tried by the High Court within whose
pecuniary jurisdiction alone, the counter claim lies.
11. Learned counsel for the petitioner has further relied upon the
judgment passed by this Court in “ Raj & Associates & Anr. v. Videsh
Sanchar Nigam Limited & Anr.” 2009 (110) DRJ 340 (DB). In this
case also this Court taking into account, Order 8 Rule 6 A CPC inter
alia held that ordinarily, a suit claim and the counter claim relate to
the same subject matter and inter-related cause of action and therefore
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are best disposed of together.
12. Learned counsel further submits that in view of the authoritative
pronouncement by this Court and for the harmonious interpretation of
Order 8 Rule 6 A CPC, the present suit along with the counter claim
is required to be transferred to this Court.
13. I have heard the submissions and perused the record carefully.
14. At the outset, this Court is not convinced with the arguments of the
learned counsel for the petitioner. First and the foremost the proviso
to Order 8 Rule 6A CPC specifically provides that the counter claim
filed by the respondent shall not exceed the pecuniary limit of the
jurisdiction of the Court.
15. I consider that the counter claim filed by the defendant, being beyond
pecuniary jurisdiction of the Court, is not maintainable, as even been
mentioned by this Court in Dr. Pritesh Kumar Singh (supra) relying
upon “ Gurbachan Singh v. Bhag Singh” (1996) 1 SCC 770 that the
counter claim or the damages cannot exceed the pecuniary jurisdiction
of the Court. It is also a cardinal principle that the jurisdiction of the
Court trying the suit cannot be ousted by taking stand in defence
i.e. by way of filing counter claim/set-off/damages in excess to the
pecuniary jurisdiction of that court.
16. The judgments cited by the learned counsel for the petitioner are
respectfully distinguished on the facts and circumstances of the case.
In “ Raj & Associates & Anr (Supra), the facts were totally different.
In the case, the initial pecuniary jurisdiction was valued at Rs. 9, 70,
417/- which was much below the pecuniary jurisdiction of
Rs.20,00,000/- at that particular time. Later on, the counter claim was
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filed which was valued at around Rs.30,00,000/-. The Court taking
into account, the peculiar facts and circumstances, allowed both the
suit and the counter claim be tried by this Court. Similarly, the facts in
Dr. Pritesh Kumar Singh (Sura) are also distinguishable. In this case
also the damages for claim and in the counter claim, the respondent-
petitioner sought the damages which were beyond the pecuniary
jurisdiction of the learned Trial Court.
17. In the present case, the respondent-plaintiff has filed a suit for
recovery of possession claiming the petitioner to be the tenant, the
petitioner herein set up a case that in fact, he had entered into an oral
agreement to sell for a sum of Rs.2,75,00,000/- out of which
Rs.40,00,000/- has been paid.
18. I consider that therefore the judgments as cited by the learned counsel
for the petitioner are distinguishable. This Court is of the view that
there is no ground to allow the transfer petition. Hence, the present
petition along with pending application is dismissed.
19. However, no expression made herein shall tantamount to be an
expression on the merits of the case.
DINESH KUMAR SHARMA, J
SEPTEMBER 28, 2022
Pallavi
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