Holding

The decree declaring the plaintiff as owner is set aside; the plaintiff is declared to have only a possessory title and is entitled to mandatory and permanent injunctions, while the counter‑claim is dismissed and the civil court's jurisdiction upheld.

Summary

Anil Panjwani purchased a vacant plot from Shri Niwas Vaidhya under a sale agreement dated 1‑Dec‑1985 and took possession, erecting a boundary wall. The defendant, R.C. Ardawatiya, later attempted to erect a hut on the plot. Panjwani sued for declaration of title, restoration of possession and injunctions. The trial court, and subsequently the first appellate court and High Court, declared Panjwani the owner. On appeal, the Supreme Court held that a contract of sale does not convey title; Panjwani was entitled only to a possessory title based on his peaceful possession with the vendor's consent. The Court also ruled that the civil court had jurisdiction despite the existence of an alternative forum under the Rajasthan Co‑operative Societies Act, and that the defendant’s belated counter‑claim could not be entertained because he had lost the right to file a written statement. Consequently, the decree declaring Panjwani as owner was set aside and replaced with a declaration of his possessory title and mandatory injunctions to remove the defendant’s encroachment. The appeal was partly allowed.

Issues considered

The civil court's jurisdiction in a suit concerning a cooperative society allotment despite the alternative forum under the Rajasthan Co‑operative Societies Act, 1965.
Whether a counter‑claim filed after the defendant has forfeited the right to file a written statement can be entertained.
Whether the plaintiff is entitled to a declaration of ownership or only a declaration of possessory title under a contract of sale.
Whether a contract of sale confers title in immovable property.
Effect of ex‑parte proceedings on the burden of proof and the plaintiff’s entitlement to relief.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 7, s. Order VIII Rule 10, s. Order VIII Rule 9, s. Order VIII Rules 2, 6, 6A, 6B, 6C, 8, 9, s. Order VI Rule 17
Limitation Act, 1963s. Article 64, s. Article 65
Rajasthan Co-operative Societies Act, 1965s. Section 137, s. Section 75
Specific Relief Act, 1963s. Section 6
Transfer of Property Act, 1882s. Section 53A, s. Section 54

Subjects

jurisdictioncounter‑claimpossessory titlecontract of salespecific reliefex‑parte proceedingscivil procedureco‑operative societies acttransfer of property actinjunction

Judgment

RAMESH CHAND ARDAWATIYA A
v.
ANIL PANJWANI

MAY 5, 2003

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

Code of Civil Procedure, 1908:

Suit for declaration of title, possession from trespasser and mandatory
injunction-Plaintiff claiming title on the strength of agreement to sale- C
Possession of plaintiff on the land from the date of agreement proved-Suit
decreed and confirmed by First Appellate Court and High Court, declaring
plaintiff as owner of the suit land-On appeal, held: Plaintiff is not owner of
the suit land, but has only possessory title-Contract of sale does not confer
title in immovable property-But if person enters into possession under a D
contract with consent of the titlP- holder, he is entitled to protect his possession
from everyone except the person who has heller title than him or the vendee-
Trespasser not having title belier than that of the plaintiff, was not entitled to
dispossess the plaintiff-Transfer of Property Act, 1882-5~A and 54-
limitation Act, 1963-Article 64-Specific Relief Act, 1963-Section 6.
E
Order VIII Rules /, 2, 6, 6A, 6B, 6C, 8 and 9 (as amended by Amendment
Act I 04 of 1976)-Counter-claim-Right to file-Wrillen statement not filed-
Held: Pleading by W£D' of counter-claim runs with the right of filing wrillen
statement-Counter-claim must find its place in the writlen statement-Once
the right to file writ/en statement is lost or the limitation period for defence F
expires, neither written statement can be flied nor counter-claim can be allowed
to be raised-However, Court has discretion to permit a written statement
being filed belatedly.

Civil Court-Jurisdiction-When alternative forum available-Held:
Despite alternative forum having exclusive jurisdiction to try particular cases, G
Civil Court can entertain a civil suit of that class on availability of a new
ground-Question ofjurisdiction is to be determined primarily on the averments
made in the plaint-Exclusion ofCivil Court 'sjurisdiction in such cases should
be raised at the earliest -In the present case, the suit being of the nature of
declaration, possession and injunction, dispute not being u/s 75(/)(a) to (e)
1149 H
1150 SUPREME COURT REPORTS (2003] 3 S.C.R.

A 75(2)(a) to (c) a/Co-operative Societies Act, not excludedfrom the jurisdiction
ofcivil Court-Hence, suit not badfor jurisdictional incompetence-Rajasthan
Co-operative Societies Act, 1965-Section 75(/)(a) to (e) and 2(a) to (c).

Evidence-Nature of-In ex-parte proceeding-Held: In such
proceedings, merely due to absence of defendant, Court shall not admit legally
B inadmissible evidence nor permit decision being influenced by irrelevant or
inadmissible evidl!nce.

The suit property which was a vacant land _was allotted to 'S' by a
Co-operative Society by allotment letter dated 26.6.1980. Plaintiff-
C respondent had entered into an agreement dated 11.12.1985 for purchase
of the suit property. On the basis of the agreement he entered into the
possession of the property and constructed a boundary wall. Plaintiff-
respondent found a hutment being raised on the suit land. On enquiry he
found that it was being done at the behest of defendant-petitioner. Plaintiff
filed suit for declaration of his title as owner of the land, for restoration of
D possession from the trespasser-defendant, for mandatory injunction for
removal of the construction raised by the trespasser and for permanent
. prohibitory injunction from raising any further construction. Commissioner
appointed to visit the suit property submitted his report. Despite notice
defendant did not file any written statement. Thereafter matter was
adjourned 15 times and yet no written statement or reply was filed. Another
E Commissioner was appointed who inspected the site in the presence of both
the parties. He had stated in his report that the plot had a temporary
kitchen instead of a hut, and two newly constructed small rooms and a
platform had come up. Correctness of this report was not challenged by
the defendant at any stage of proceedings. Again the case was adjourned
F on 29 occasions and no written statement was filed. On a date of hearing
when defendant and his counsel absented from the Court, the case
proceeded ex-parte. On the date of plaintiff's ex-pa rte evidence, defendant
filed an application seeking the setting aside of ex-pa rte proceedings and
the same was dismissed. After ex-parte proceedings trial court reserved
the judgment. In the meantime defendant filed Revision petition challenging
G the order of trial court dismissing application seeking the setting-aside of
ex-parte proceedings and the same was dismissed by High Court.
Thereafter defendant filed application before trial court seeking
opportunity for cross-examining plaintifrs witnesses and the same was
allowed subject to certain conditions. At this stage defendant filed an
H application under Order 8 Rule 6A CPC seeking leave of the Court to file
R.C. ARDAWATIYA v. ANIL PANJWANI 1151
written statement by way of counter claim alleging therein that the lefter A
of allotment dated 26.6.1980 was false and forged and sought declaration
of the allotment letter and agreement dated 1.12.1985 as null and void.
Plaintiff was called upon to file a reply and the same was challenged by
plaintiff in Revision petition. Revision was allowed by High Court with a
direction to examine the President and Secretary of the Co-operative society B
as Court witnesses alongwith the records of the society. As the records were
not traceable, trial court reported to the High Court that the direction made
by High Court was not possible of compliance for want of records. Evidence
was closed as permitted by High Court directing the case to be decided
within 3 months. After the arguments were heard, defendant filed an
application seeking leave of the Court for examining his witnesses. T:1e C
application was dismissed and the dismissal order was challenged in
revision. Trial Court decreed the suit declaring the plaintiff to be owner
of the Suit plot, directing the defendant to restore possession to the plaintiff.
First appeal against the decree as well as second appeal were dismissed.

In appeal to this Court defendant-appellant contended that Civil D
Court had no jurisdiction to try the suit as alternative remedy was available
under Rajasthan Co-operative societies Act, 1965; that even if defendant
was being proceeded ex-parte, his counter-claim should have been taken
on record and heard and decided on merits; that even if suit proceeds for
hearing ex-parte, it is the duty of the Court to decide the case in accordance E
with law; that plaintiff being entitled to relief of specific performance, the
suit for mere declaration of title, recovery of possession and injunction was
not maintainable; and that unless and until he had perfected his title by
execution of sale deed, he could not have been declared the owner of the
property.

Partly allowing the appeal, the Court
F

HELD: 1.1. On the proven facts of the case the plaintiff is not entitled
to a declaration that he is owner of the property. There is no pleading and
no proof of the defendant having any title-much less a title better than
that of the plaintiff-to the suit property. He could not have dispossessed G
the plaintiff nor interfered with the peaceful possession and enjoyment of
the plot by the plaintiff. The plaintiff is, therefore, entitled to a declaration
. of his possessory title that he was in peaceful possession and enjoyment of
the property until the date his possession was threatened by the defendant
by attempting to raise unauthorized construction over the property.
11177-D-Fl H
1152 SUPREME COURT REPORTS [2003] 3 S.C.R.

A 1.2. A contract for sale does not confer title in immovable property. ;
Section 54 of the Transfer of Property Act provides that a contract for the
sale of immovable property is a contract that sale of such property shall
take place on terms settled between the parties; it does not of itself, create
any interest in or charge on such immovable property. However still, if a
B person has entered into possession over immovable property under a
contract for sale and is in peaceful and settled possession of the property
with the consent of the person in whom vests the title, he is entitled to
protect his possession against the whole world, excepting a person having
a title bette·r than what he or his vendor possesses. If he is in possession of
-
the property in part performance of contract for sale and the requirements
C of Section 53A of the Transfer of Property Act are satisfied, he may protect
his possession even against the true owner. 11173-C-El

Shrimanl Shamrao Suryavanshi and Anr. v. Prathod Bhoiroma
Suryavanshi (dead) by LRs. and Ors., 120021 3 SCC 676, referred to.

D 1.3 Section 6 of the Specific Relief Act, 1963, provides for any person
dispossessed without his consent of immovable property otherwise than in
due course of law being entitled to claim and successfully sue for recovery
of possession thereof, notwithstanding any other title that may be set up
in such suit if the suit is brought before the expiry of six months from the
E date of dispossession except against the Government. Article 64 of
Limitation Act, 1963 contemplates a suit for possession of immovable
property based on previous possession, and not on title, being brought
within twelve years from the date of dispossession. Such a suit is known in
law as a suit based on possessory title as distinguished from proprietory
title. I1173-F-G I
F
Nair Service Society Ltd. v. KC. Alexander and Ors., 1196813 SCR 163,
relied on.

1.4. The person in possession may not have title to the property yet
G if he has been inducted into possession by the rightful owner and is in
peaceful and settled possession of such property he is entitled in law to
protect the possession until dispossessed by due process of law by a person
having a title better than what he has. A person in possession of the
property cannot be forcibly dispossessed by another rank trespasser and
even if the latter docs so, the former may be entitled to restoration of
H possession, because the law respects peaceful possession and frowns upon
R.C. ARDAWATIY A v. ANIL PANJWANI 1153

the person who takes the law in his own hands. f 1176-B-CI A

1.5. From the evidence it is proved that the title of the plot vests in
'S'. He has entered into contract for sale for consideration in favour of
the plaintiff. Upto date of agreement of sale he was in possession of the
property. Thereafter plaintiff remained in possession of the plot. He raised
a boundary wall to protect the possession as a prospective vendee. The B
contract for sale was acted upon. The defendant has not been able to prove
any right to possess the suit property-a right better than that of the
plaintiff-much less a title in himself. This is an appropriate case where
the plaintiff must be held to have been in peaceful and lawful possession

-· of the suit property invaded upon by the defendant otherwise than by due
process of law and hence the status quo ante by reference to the date of
accrual of cause of action must be restored followed by incidental and
C

consequential relief of injunctions. The defendant may then seek recovery
of possession but only by establishing his title therefor in duly constituted
legal proceedings before a competent forum. The plaintiff had rushed to
the Court without any loss of time. His averments made in the plaint and D
the evidence have remained uncontroverted and unrebutted.
11176-H; 1177-A-CI

1.6. The decree of declaration that the plaintiff-respondent is owner
of the suit property is set aside. Instead it is declared that from 1.12.1985 E
to 8.2.1987 the plaintiff was in peaceful possession of the suit plot pursuant
to agreement dated 1.12.1985 entered into by the allottee of the plot from
the society, in favour of the plaintiff. The plaintiff is also entitled for
mandatory and permanent preventive injunctions. Construction, if any,
raised by the defendant on the plot and the hutment raised by his labourers
shall be removed by him and the possession over the plot shall be restored F
to the plaintiff. The defendant is permanently restrained from interfering
with the possession of the plaintiff over the suit plot except by due process
of law. fl 177-H; 1178-A-BI

2.1. A perusal of Rules I, 2, 6, 6A, 68, 6C, 8 and 9 of Order VIII G
CPC show that it is the Amendment Act of 1976 which has conferred a
statutory right on a defendant to file a counter claim. The words in Ruic
6A go to show that a pleading by way of counter-claim runs with the right
of filing a written statement and that such right to set up a counter claim
is in addition to the right of pleading a set-off conferred by Rule 6. A set-
off has to be pleaded in the written statement. The coui:ter-claim must H
1154 SUPREME COURT REPORTS [2003] 3 S.C.R.

A necessarily find its place in the written statement. Once the right of the
defendant to file written statement has been lost or the time limited for
delivery of the defence has expired then neither the written statement can
be filed as of right nor a counter-claim can be allowed to be raised, for the
counter-claim under Rule 6A must find its place in the written statement.
B The Court has discretion to permit a written statement being filed belatedly
and, therefore, has a discretion also to permit a written statement
containing a plea in the nature of set-off or counter-claim being filed
belatedly but such discretion shall be exercised in a reasonable manner
keeping in view all the facts and circumstances of the case including the
conduct of the defendant, and the fact whether a belated leave of the Court
C would cause prejudice to the plaintiff or take away a vested right which
has accrued to the plaintiff by lapse of time. 11168-E-H; 1169-AI

2.2. The purpose of the provision enabling filing of a counkr-claim
is to avoid multiplicity of judicial proceedings and save upon the Court's
time as also to exclude the inconvenience to the parties by enabling claims
D and counter-claims, that is, all disputes between the same partif'S being
decided in the course of the same proceedings. If the consequence of
permitting a counter-claim either by way of amendment or by way of
subsequent pleading would be prolonging the trial, complicating the
otherwise smooth flow of proceedings or causing a delay in the progress
E of the suit by forcing a retreat on the steps already taken by the Court,
the Court would be justified in exercising its discretion not in favour of
permitting a belated counter-claim. The framers of the law never intended
the pleading by way of counter-claim being utilized as an instrument for
forcing upon a reopening of the trial or pushing back the progress of
proceeding. Generally speaking, a counter-claim not contained in the
F original written statement may be refused to be taken on record if the issues
have already been framed and the case set down for trial, and more so
when the trial has already commenced. In the present case, the defendant
having failed to. file any written statement and also having forfeited his right
of filing the same the trial court was fully justified in not entertaining the
G counter-claim filed by the defendant-appellant. A refusal on the part of
the Court to entertain a belated counter-claim may not prejudice the
defendant because in spite of the counter-claim having been refused to be
entertained he is always at liberty to file his own suit based on the cause of
action for counter-claim. 11170-B-CI

H 2.3. The purpose of the defendant which was sought to be achieved
R.C. ARDAWATIY A v. ANIL PANJWANI 1155
by moving the application under Order VIII Rule 6A CPC was clearly ma/a A
fide and an attempt to reopen the proceedings, including that part too as
had stood concluded against him consequent upon rejection of his
application under Order IX Rule 7 CPC. There being no written statement
of the defendant available on record and the right of the defendant to file
the written statement having been closed, finally and conclusively, he could B
not have filed a counter-claim. (1171-G-H; 1172-A(

2.4. The averments made in the counter-claim were prima facie false.
One of the pleas raised in the counter-claim is that the defendant had got
the plot allotted to him in the year 1980 and soon thereafter a house was
constructed on the plot and his family was living therein which story is a C
blatant lie in view of the reports filed by two different Advoc11te
Commissioners, the later one being bi-party and none having been disputed
so far as the correctness of facts found and recorded therein is concerned.
(1171-G-H; 1172-A)

Sangram Singh v. Election Tribunal, Kotah, 1195512SCR1; Arjun Singh D
v. Mohinder Kumar and Ors., (1964) 5 SCR 946 and Laxmidas Dayabhai
Kabrawala v. Nandbhai Chunilal Kabrawala and Ors.. 11964( 2 SCR 567,
relied on.

Mahender Kumar and Anr. v. State of Madhya Pradesh and Ors., (1987(
I 3 SCC 265 and Shanti Rani Das Dewanji v. Dinesh Chandra Day, 11997( 8 E
sec 174, distinguished.
3. Even if the suit proceeds ex-pa rte and in the absence of a written
statement, unless the applicability of Order VIII Rule 10 CPC is attracted
and the Court acts thereunder, the necessity of proof by the plaintiff of
his case to the satisfaction of the Court cannot be dispensed with. In the F
absence of denial of plaint averments the burden of proof on the plaintiff
is not very heavy. A prima facie proof of the relevant facts constituting
the cause of action would suffice and the Court would grant the plaintiff
such relief as to which he may in law be found entitled. In a case which
has proceeded ex-partc the Court is not bound to frame issues under Order G
XIV and deliver the judgment on every issue as required by Order XX Rule
5. Yet the trial court would scrutinize the available pleadings and
documents, consider the evidence adduced, and would do well to frame the
'points for determination' and proceed to construct the ex-pa rte judgment
dealing with the points at issue one by one. Merely because the defendant
is absent the Court shall not admit evidence the admissibility whereof is H
1156 SUPREME COURT REPORTS [2003] 3 S.C.R.

A excluded 'by law nor permit its decision being influenced by irrelevant or
inadmissible evidence. (1172-G-H; 1173-A-CJ

4.l. Civil court does not suffer from any inherent lack of jurisdiction.
Where there is a special Tribunal conferred with jurisdiction or exclusive
jurisdiction to try particular class of cases even then the civil court can
B entertain a civil suit of that class on availabilit) of a few grounds. An
exclusion of jurisdiction of civil court is not to be readily inferred. An
objection as to the exclusion of civil court's jurisdiction for availability of
alternative forum should be taken before the trial court and at the earliest
failing which the higher court may refuse to entertain the plea in the
C absence of proof of prejudice. (1163-H; 1164-A-B(

Dhulabhai etc. v. State of Madhya Pradesh and Anr., (1968( 3 SCR 662,
referred to.

4.2 In the present case there is nothing to show that the defendant is
D also a member of the Society or claiming under a member. The plaintiff
does not have any dispute with another member of the society or the society
itself. The question of jurisdiction is to be determined primarily on the
averments made in the plaint. The plaint as framed by the plaintiff is for
declaration of title as owner (and in the alternative, his possessory title)
E and seeking restoration of possession, as also issuance of mandatory and
preventive injunctions against a recent encroachment. Neither is it a dispute
between the parties referred to in Clauses (a) to (e) of sub-Section (I) of
Section 75, nor does the nature of the dispute fall in Clauses (a) to (c) of
sub-Section (2) of Section 75 of Rajasthan Co-operative Societies Act, 1965,
so as to be one excluded from the domain of a civil court to try the suit. It
F cannot be held that the civil court suffered from any jurisdictional
incompetence to hear and try the suit. (1165-G-H; 1166-A-B(

5. The relief of specific performance is not a further relief to which
the plaintiff is entitled or which he could have sought for against the
G defendant. The defendant was alleged to be a rank trespasser who was in
the process of committing a trespass and was allegedly raising unauthorized
construction over the property neither owned nor legally possessed by him.
Thus, from the point of view of the present defendant, there is no such
defect or infirmity in the relief sought for by the plaintiff as would render
the suit not maintainable and liable to be thrown out at the threshold.
H (1172-E-F(
R.C. ARDAWATIYA v. ANIL PANJWANI [R.C. LAHOTI, J.] 1157
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7919 of A
2001.

From the Judgment and Order dated 16.4.2001 of the Rajasthan High
Court in S.B.C.S.A. No. 209 of 2001.

Vijay Hansaria, Ms. Kinklee Barooah and Sunil Kumar Jain for the B
Appellant.

In persons for the Respondent.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. The present lis, having attained the age of I 5 years
c
by this time, is one harrowing tale of laws' delays causing frustration in the
mind of a suitor who deprived of his property rushed promptly to the Court
for vindicating his rights and seeking protection under the arm of Jaw. He
faced adjournments and adjournments without any substantial progress at the
trial in an over-burdened Trial Court, at the lowest rung of the judicial D
hierarchy, unable to spare such time as the individual cases demand so as to
have a firm grip over the progress of each case. Several revisions taken to
the High Court at interlocutory stages of the trial, too contributed to the
delay, adding fuel to the fire of the plaintiffs agony. The record of tardy
proceedings in the Trial Court, at least at the initial stage, reflects the E
defendant's impunity; he felt that he was beyond the reach of the law, though
fortunately such hope of the defendant proved to be only a nightmare. The
case has witnessed even contempt proceedings being initiated. Criminal cases
too have germinated as off-shoot branches. We have heard the learned senior
counsel for the appellant and the respondent appearing in person, controlling
the proceedings firmly and with patience, so as to save them from drifting F
away towards initiation of yet other contempt proceeding. We told the
respondent and the learned counsel for the appellant that we shall do justice,
as duty bound we are, notwithstanding the fact that we feel hurt by the
conduct of the plaintiff respondent, appearing in-person, and in our desire to
do so we have not acceded to the prayer of the learned senior counsel for the G
appellant for withholding the hearing in the appeal until the contempt has
been purged by the respondent as we felt that withholding the hearing in this
appeal would only contribute to further frustration in the parties, add an
undeserved length of life to an already old litigation, and may probably give
rise to other off-shoot proceedings adding to the bulk of ever-mounting arrears
of cases. The root cause of the dispute should first be resolved - we told the H
1158 SUPREME COURT REPORTS [2003] 3 S.C.R.

A two, and that may probably, we hope, terminate the side issues as well.
Happily we note, at the end of the hearing in appeal and the proceedings in
contempt case that the respondent has felt genuinely repentant, withdrawn all
his allegations constituting insinuation on which the contempt notice is founded
and tendered an unconditional apology with folded hands craving for justice
to be done in the main cause. The contempt proceedings we will deal with
B separately. This judgment determines the dispute as to _civil rights between
the parties fully and finally to the extent to which it can.

Anil Panjwani, the plaintiff-respondent, (hereinafter Panjwani - for short)
filed a suit styled as a suit for 'declaration, possession and permanent
C injunction' against Ramesh Chand Ardawatiya (defendant-appellant,
Ardawatiya - for short). The plaint was presented on 9.2.1987 in the Court
of Additional Munsif, Class I, Jaipur City, West Jaipur. The suit prope1ty is
plot no.2, area 273.03 square yards (61 '6" X 40') described by boundaries in
para 3 of the plaint. Briefly stated, the gist of the plaint averments is that on
1.12.1985 Panjwani entered into an agreement for purchase of the suit property
D for a consideration of Rs. 4500 from one Shri Niwas Vaidhya, the then owner
of the suit property. A document in writing was executed. Rs. 4000 were paid
by way of earnest. Rs. 500 were to be paid at the time of registration. Original
documents relating to the title of the vendor were passed on to Panjwani. On
the date of agreement the plot was lying vacant. In December 1985 Panjwani
E constructed a boundary wall, desirous of raising construction on the plot in
near future. On 8.2.1987, at about 4 p.111., when Panjwani had gone to inspect
the plot, he found a mason raising a hutment and two women sitting there.
On making enquiries, Panjwani learnt that some construction was proposed
to be raised at the behest of Ardawatiya. Neither on that day nor on the
following day Ardawatiya could be found out by Panjwani. The suit was
F filed post-haste on 9.2.1987 for the following reliefs : (i) declaration of
plaintiffs title as owner of the suit plot; (ii) restoration of possession from
the trespasser-defendant to the plaintiff; (iii) mandatory injunction for removal
of the construction raised by the trespasser; (iv) permanent prohibitory
injunction from raising any further construction; (v) costs, and (vi) such other
G relief as the Court may deem fit and proper in the facts and circumstances
of the case and to which the plaintiff may be found entitled.

The plaint was accompanied by a prayer for issuance of ad-interim
injunction u·nder Order 39 Rules I and 2 of the CPC preventing the defendant
from raising any construction over the suit property.
H
R.C. ARDAWATIYA v. ANIL PANJWANI [R.C. LAHOTI. J.] 1159
The day on which the plaint was presented, it appears that the presiding A
Judge was on leave and so the matter came to be placed before an in-charge
Judge, may be as per the rules or practice prevalent in the State of Rajasthan.

- On an application filed by the plaintiff he directed one Shri Pratap Singh,
Advocate to be appointed as an Advocate Commissioner to visit the suit
property and submit a report as to the factual status thereof. The learned B
Advocate Commissioner visited the site of dispute from 6 to 7 p.m. on
9.2.1987 itself. The plaintiff-Panjwani and his advocate were present. 4 to 5
persons were present on the plot, of whom one was male and others were
females. They refused to interact with the Commissioner. Rather they
threatened the visitors that their heads will be broken if they entered the plot.
The neighbours present apprised the Advocate-Commissioner that a house C
was proposed to be constructed on the plot. The Advocate Commissioner too
formed the same impression by his inspection and evaluation of the site. One
Advocate Mr. Mahender Singh Baghela (unconcerned with any of the parties
and presumably a resident of that locality) happened to be present. The most
material part of the Commissioner's report is a sketch map according to
which the plot was an open piece of land whereon in the north-west corner D
there was a hut. Some pieces of stone, of bricks and a heap of sand were
lying in different parts of the plot. There was a water tap. The plot was
surrounded by a boundary wall.

The persons present on the plot and the neighbours who had assembled E
there refused to sign on the report of the Commissioner though requested to
do so. The plaintiff-Panjwani, his advocate - Shri Ram Nath Sharma, and
Advocate Shri Mahender Singh present at the site, subscribed to the report.

What is significant to note in the Commissioner's repo1t is that there
was no construction at the site and ce1tainly there was no house, and no p
,, habitation, much less any person or family having been found as residing in
any manner on the plot. The grass hut was apparently for use by labourers.

On 10.2.1987 the defendant appeared in the Court through his counsel.
However, the Presiding Officer was on leave. Though the defendant was
served with summons in the suit as also with notice on the prayer for the G
grant of ad-interim injunction, no written statement or reply was filed on
10.2.1987. The presiding officer was on leave on this day also. The matter
was placed before a Judge in-charge. He directed status quo as to the suit
property to be maintained restraining the defendant not to proceed with any
construction ahead. Thereafter, on 15 dates of hearing the matter was simply H
1160 SUPREME COURT REPORTS [2003] 3 S.C.R.

A adjourned without the defendant having filed any written statement or reply.
On 24.2.1987 the plaintiff moved a second application for appointment
of yet another Commissioner to carry out inspection of the suit property in
the presence of both the parties. It appears that the purpose of the appointment
of the second Commissioner was to have a bi-party inspection carried out as
-
B the inspection carried out on 9.2.1987 by Shri Pratap Singh, Advocate
Commissioner was in the absence of the defendant, and there was some
element of urgency involved in the inspection on that day so as to bring on
the record of the Court the status of the property on the date of the institution
of the suit. Shri S.K. Kataria, Advocate, now appointed as Advocate
C Commissioner, carried out inspection of the suit property on 25.2.1987 in the
presence of the plaintiff and a representative of the defendant, probably his
special power of attorney holder. Shri Kataria also drew up a sketch of the
suit plot incorporated in his repo11. The identity of the plot is the same but
with a little change as to its status. Building material consisting of bricks,
sand and stones were lying on the plot. In the north-west corner, instead of
D the hut, a temporary kitchen made of bare bricks had come up and in the
north-east corner covering an area of 6x 12 ft. two small rooms and a platform
had come up which were newly constructed. The report drawn up by the
Commissioner bears the signature of the plaintiff and the representative of
the defendant. Here itself we may observe that the second report by the
E Advocate Commissioner, the correctness whereof has not been disputed by
the defendant at any stage of the proceedings, is prima facie suggestive of
two inferences: firstly, that even till the date of bi-party inspection carried out
by the Advocate Commissioner the plot was a vacant piece of land on which
construction had just commenced and was in the process of coming up; and
secondly, the defendant had proceeded with construction work in spite of the
F interim order of the Court directing status quo as to the suit property to be
maintained and specifically restraining the defendant from proceeding with ••
the construction ahead.

On 4.6.1988, under the administrative orders of the District Judge, the
case came to be transferred to the Court of an Additional Judge. Thereafter,
G the case was adjourned on 29 dates of hearing, il'gain without the filing of
written statement or reply. At least on 3 dates of hearing the defendant was
allowed adjournment on payment of costs of Rs. 40, Rs. 50 and Rs. 250. On
29. l 0.1992 the defendant and his counsel absented from appearance in Court.
The case proceeded ex-parte. On 24.7. 1993, the date appointed for plaintiff's
H ex-parte evidence, the defendant filed an application under Order 9 Rule 7 of
R.C. ARDA WATIY A v. ANIL PANJWANI (R.C. LAHOTI. J.] 1161

the CPC seeking setting aside of the ex-parte proceedings. On 6.9.1993 the A
case came to be transfen-ed to another Court under the administrative orders
of the District Judge. On 11.5.1994 the Trial Court passed a detailed order
holding that the defendant had completely failed in assigning any good cause
for his previous non-appearance and therefore the application under Order IX
Rule 7 of the CPC was liable to be dismissed. It was dismissed accordingly. B
The plaintiff examined three witnesses in ex-parte evidence including himself
and his vendor. Though such ex-parte evidence was recorded piecemeal on
at least three dates of hearing, the defendant or his counsel were not present
and did not participate in the proceedings. The arguments of the counsel for
the plaintiff were heard and judgment was reserved. In-between the defendant
had preferred a Civil Revision No.1202/94 laying challenge to the order C
dated 11.5.1994. Vide order dated 20.3.1995, the Civil Revision filed by the
defendant was directed to be dismissed by the High Court.

On 25.3.1995, the defendant moved an application labelled as one under
Order 18 Rule 17 of the CPC submitting that the defendant had not cross-
examined the plaintiffs witnesses because of the pendency of his civil revision D
in the High Court and as the civil revision was dismissed he may be given
opportunity of cross-examining the plaintiff's witnesses. On 2.5.1995, the
Court allowed defendant's application subject to payment of costs and subject
to the term that before the cross-examination is commenced the plaintiff will
have a right, if he so desires, to put to his witnesses additional questions by E
way of examination-in-chief.

At this stage, the ingenuinity of the defendant-appellant comes into
play. On 2.5.1995, he moved an application proposing to place on record a
'written statement under Order 8 Rule 6A ofCPC'. It was alleged therein that
the plaintiff was claiming the suit premises under an agreement dated 1.12.1985 F
entered into by Shri Niwas Vaidhya based on letter of allotment dated
26.6.1980, issued by Sindhunagar Co-operative Society Ltd., which letter of
allotment is false and forged and, therefore, it has become necessary to have
declared the letter of allotment dated 26.6.1980 and the agreement dated
1.12.1985 null and void. Copies of the application seeking leave of the Court
to file the written statement by way of counter claim and the accompanying G
counter claim, were delivered to the plaintiff's counsel, calling upon him to
file a reply.

While the above proceedings were going on in the trial Court, the order
dated 2.5.1995 was put in issue by the plaintiff-Panjwani by filing civil H
1162 SUPREME COURT REPORTS [2003] 3 S.C.R.

A revision in the High Court. By order dated 16.1.1996 the revision was allowed.
The order dated 02.05.1995 was set aside. However, the High Court directed
the President and Secretary of the Society which had allotted the plot to be
examined as court witnesses along with the relevant records of the society.
A marathon race began between the Court and the Society. The Couit was
B seeking production of the record so as to enable recording of the statements
of the office-bearers of the society as court witnesses to comply with the
directions of the High Court. Several past officers of the society and their
successors, as were ascertainable were summoned one after other. None
admitted the availability of the records with him and each one went on
passing on the buck to the other. The office-bearers of the Cooperative
C Depa1tment and the administrator appointed in supercession of the society
were also summoned but the records were just not traceable. At the end, on
21.12.2000 after making a reference to the High Court soliciting directions,
the Trial Court held that the direction earlier made by the High Court was not
possible of compliance for want of records. The evidence was closed as
permitted by the High Court in its order dated 11.10.2000 responding to the
D reference, also directing the case to be decided within three months in view
of the previous delay. The arguments were heard. At that stage the defendant
moved an application seeking leave of the Court for examining his witnesses.
In view of the peculiar facts and circumstances of the case, especially the fact
that the application was highly belated, and that too in the background of the
E event that his application under Order 9 Rule 7 of the CPC was rejected upto
the High Couit and his counter-claim was not taken on record, the Court, by
order dated 4.11.2000, turned down the defendant's prayer for production of
his evidence.

The order dated 4.11.2000 whereby the Coult had refused the defendant
F an opportunity of adducing evidence was put in issue by the defendant by
filing a revision in the High Court. The defendant failed to produce any order
of stay from the High Court. The Trial Court noticed in its order dated
21.12.2000 the previous order of the High Court dated 11.10.2000 whereby
the High Coult had directed the case to be disposed of within a period of
G three months, which time-limit was coming to an end. By judgment and
decree dated 8.1.200 I the Trial Coutt directed the suit filed by the plaintiff
to be decreed. The plaintiff was declared owner of the suit plot and the
defendant was directed to restore possession of the plot within a period of
one month from the date of the decree failing which the plaintiff would be
entitled to have the encroachment and the illegal construction whatever be of
H the defendant, to be demolished and removed at the cost of the defendant.
R.C. ARDAWATIYA v. ANIL PAN.IWANI [R.C. LAHOTI. J.] 1163
The defendant preferred First Ap.peal against the judgment and decree A
dated 8.1.200 I which was registered as FA No.3/200 I. It was heard and
dismissed by Fifth Additional District Judge, Jaipur, by judgment and decree
dated 7.3.2001. The defendant preferred Second Appeal which was dismissed
in limine on 16.4.2001, by the High Court forming an opinion that the appeal
did not involve any substantial question of law within the meaning of Section B
I 00 of the CPC. An application under Order 41 Rule 27 of the CPC filed by
the defendant before the First Appellate Court seeking production of certain
documents by way of additional evidence was rejected by the First Appellate
Court as in its opinion no case for admission of additional evidence was
made out. The High Comi found no fault with the view so taken by the
learned Additional District Judge. c
This SLP by the defendant has been filed on 28.4.2001. On 16.7.2001
a two-Judges Bench of this Court directed notice in SLP to be issued. On that
day the plaintiff-Panjwani too was present in-person, having filed a caveat
opposing the special leave petition. The Cou11 allowed him time to file counter-
affidavit and ordered 'status quo as of that day to continue.' D
The hearing in this court has an unpleasant flavour as there have been
contempt proceedings drawn up as an off-shoot to this appeal and the case
has shifted for hearing amongst different Benches.

We have heard the learned senior counsel for the petitioner and the E
respondent present in-person with the understanding that the appeal shall be
heard and disposed of finally to which they have agreed.

The learned senior counsel for the appellant has made several
submissions which can be grouped into three: (I) that the Civil Court did not
have jurisdiction to try the suit and the plaintiff should have been relegated F
by the Trial Court to pursue his remedy before the authority/tribunal competent
to adjudicate upon such dispute under the provisions of the Rajasthan
Cooperative Societies Act, 1965; (2) that even if the defendant was being
proceeded ex-parte his counter-claim should have been taken on record and
heard and decided on merits; failure to do so has occasioned a failure of G
justice; and (3) that even in the proceedings ex-pa11e against the defendant
the plaintiff was not entitled to the decree as prayed for.

We find, as would be dealt with hereinafter, the first two pleas devoid
of any merit, but pa11ial merit in the last plea. As to the first submission, we
find that the Civil Court does not suffer from any inherent lack of jurisdiction. H
1164 SUPREME COURT REPORTS [2003] 3 S.C.R.

A Where there is a special Tribunal conferred with jurisdiction· or exclusive
jurisdiction to try particular class of cases even then the Civil Court can
entertain a civil suit of that class on availability of a few grounds. An exclusion
of jurisdiction of Civil Court is not to be readily inferred. (See Dhulabhai etc.
v. State of Madhya Pradesh and Anr., [1968] 3 SCR 662. An objection as
B to the exclusion of Civil Court's jurisdiction for availability of alternative
forum should be taken before the Trial Court and at the earliest failing which
the higher Court may refuse to entertain the plea in the absence of proof of
prejudice.

Sections 75 and 137 of Rajasthan Cooperative Societies Act, 1965
provide as under : 75. Disputes which may be referred to arbitration.
c - (l) Notwithstanding anything contained in any law for the time
being in force, if any dispute touching the constitution, management,
or the business of a co-operative society arises -

(a) among members, past members and persons claiming through
members, past members and deceased members, or t-
D
{b) between a member, past member or person claiming through a
member, past member or deceased member and the society, its
committee or any officer, agent or employee of the society, or
(c) between the society or its committee and any past committee, any
E officer, agent or employee, or any past officer, past agent or past
employee or the nominee, heirs or legal representatives of any
deceased officer, deceased agent or deceased employee of the
society, or

(d) between the society and any other co-operative society,
F
(e) between the society and the surety of a member, past member or
a deceased member, or a person other than a member who has
been granted a loan by the society or with whom the society has
or had transaction under section 66, whether such a surety is or
is not a member of a society,
G
such dispute shall be referred to the Registrar for decision and no
court shall have jurisdiction to entertain any suit or other proceeding
in respect of such dispute.

(2) For the purposes of sub-section ( l ), the following shall be
H deemed to be disputes touching the constitution, management or the
R.C. ARDA WA TIY A v. ANIL PANJWANI (R.C. LAHOTI, J.) 1165
business of a co-operative society, namely:- A
(a) a claim by the society for any debit or demand due to it from a
member or the nominee, heirs or legal representatives of a deceased
member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor where the society B
has recovered from the surety any amount in respect of any debt
or demand due to it from the principal debtor as a result of the
default of the principal debtor, whether such debt or demand is
admitted or not;
(c) any dispute arising in connection with the election of any officer
of the society. C
(3) If any question arises whether a dispute referred to the Registrar
under this section is a dispute touching the constitution, management
or the business of a co-operative society, the decision thereon of the
Registrar shall be final and shall not be called in question in any
court. D

137. Bar a/jurisdiction of courts. - (I) Save as provided in this Act,
no civil or revenue court shall have any jurisdiction in resp~ct of.
(a) the registration of a co-operative society or of an amendment of
a bye-law; E
(b) the removal of a committee;
(c) any dispute required under section 75 to be referred to the
Registrar; and
(2) While a co~operative society is being wound up, no suit or F
... other legal proceedings relating to the business of such society shall
be proceeded with, or instituted against, the liquidator as such or
against the society or any member thereof, except by leave of the
Registrar and subject to such terms as he may impose.

(3). Save as provided in this Act, no order, decision or award G
made under this Act shall be questioned in any court on any ground
whatsoever.

In the present case there is nothing to show that the defendant is also
a member of the Society or claiming under a member. The plaintiff does not
have any dispute with another member of the Society or the Society itself. H
1166 SUPREME COURT REPORTS [2003] 3 S.C.R.

A The question of jurisdiction is to be determined primarily on the averments
made in the plaint. The plaint as framed by the plaintiff is for declaration of
title as owner (and in the alternative, his possessory title) and seeking
restoration of possession, as also issuance of mandatory and preventive
injunctions against a recent encroachment. Neither is it a dispute between the
B parties refemd to in Clauses (a) to (e) of sub-Section (I) of Section 75, nor
does the nature of the dispute fall in Clauses (a) to (c) of sub-Section (2) of
Section 75, so as to be one excluded from the domain of a Civil Court. At
no stage of the proceedings has the defendant-appellant taken any objection
to the jurisdiction of the Civil Court to try the suit. We are not satisfied -
even prima facie - to hold that the Civil Court suffered from any jurisdictional
C incompetence to hear and try the suit. Several revision petitions were preferred
in the High Court against the orders passed at several stages of the proceedings
of the Trial Court. An objection to the jurisdiction of the Trial Court was not
taken before the High Court in any of the civil revisions. It will be too late
in the day to perm it such an objection being taken and urged at the hearing
before this Court. The plea as to want of jurisdiction in the Trial Court is
D devoid of any merit and is, therefore, rejected. As to the second submission,
placing strong reliance on two decisions of this Court, namely, Mahender
Kumar and Anr. v. State of Madhya Pradesh and Ors., (1987] 3 SCC 265
and Shanti Rani Das Dewanji. v. Dinesh Chandra Day, ( 1997] 8 SCC 174,
the learned senior counsel for the appellant submitted that it is permissible to ...
E prefer a counter-claim even subsequent to the filing of the written statement
and the Trial Court was, therefore, not justified in refusing to take cognizance
of the counter-claim ti led by the defendant and to try it on merits solely on
the ground that the case had proceeded ex-parte and the counter claim was
sought to be pleaded belatedly without a written statement being on record
placed by the defendant.
F
The learned senior counsel for the appellant submitted that although the
defendant-appellant had not filed a written statement and though the case was
proceeded ex-parte against him, still, if the defendant had filed a counter-
claim admissible and entertainable within the meaning 'of Order VIII Rule 6A
G of the ere, it ought to have been entertained and tried, and failure to do so
has occasioned an irreparable prejudice to the defendant-appellant. Order
Vil! Rule 6A does not provide for any stage for filing a counter-claim, and
assuming that there was a delay yet the loss of time could have been
compensated for by awarding of suitable costs, but the counter-claim should
not have been refused to be ente11ained and tried, submitted the learned
H senior counsel. He prayed that the least relief which should be allowed to the
R.C. ARDAWATIYA v. ANIL PANJWANI (R.C. LAMOTL J.] 1167

appellant is to direct the counter-claim being taken on record and the entire A
case then remanded to the Trial court for hearing and decision afresh in the
light of the counter-claim filed by the defendant-appellant.

Order VIII of the CPC deals with 'written statement, set off and counter-
claim'. We would like to state, by way of clarification, that the provisions of
CPC which are being considered herein are as amended by Act No. I04 of B

- 1976 only, (excluding from consideration the amendments incorporated by
Act No.46 of 1999 with effect from 1.7.2002). According to Rule I of Order
VIII the defendant shall, at or before the first hearing or within such time as
the Court may permit, present a Written Statement of his defence. Under
Rule 2 the defendant must raise by his pleadings inter alia all matters which C
show the suit not to be maintainable and all such grounds of defence as, if
not raised, would be likely to take the opposite party by surprise. Under Rule
6 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 subject to certain limitations. Rules 6A, 68
and 6C (introduced by the Amendment Act, 1976) read as under :- D
"6A. (l)A defendant in a suit may, in addition to his right ofpleading
a set-off under rule 6, set-up by way of counterclaim 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 E
defence or before the time limited for delivering his defence has
expired whether such counterclaim is in the nature of a claim for
damages or not:

Provided that such counterclaim shall not exceed the pecuniary
limits of jurisdiction of the Court. F
(2) Such counterclaim 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 counterclaim.

(3) The plaintiff shall be at liberty to file a written statement 111 G
answer to the counterclaim of the defendant within such period as
may be fixed by the Court.

(4) The counterclaim shall be treated as a plaint and governed by the
rules applicable to plaints.
H
1168 SUPREME COURT REPORTS (2003] 3 S.C.R.

A 68. Where any defendant seeks to rely upon any ground as supporting
a right of counterclaim, shall, in his written statement, state specifically
that he does so by way of counterclaim.

6C. Where a defendant sets up a counterclaim and the plaintiff
contends that the claim thereby raised ought not to be disposed of by
B way of counterclaim but in an independent suit, the plaintiff may, at
any time before issues are settled in relation to the counterclaim,
apply to the Court for an order that such counterclaim may be excluded
and the Court may, on the hearing of such application make such
-
order as it thinks fit."

c (emphasis supplied)

Under Rule 8 any ground of defence which has arisen after the institution
of the suit or the presentation of a written statement claiming a set-off or
counter-claim may be raised by the defendant or plaintiff, as the case may be,
in his written statement. Under Rule 9 no pleading subsequent to the written
D statement of a defendant other than by way of defence to a set-off or counter-
claim shall be presented except by leave of the Court and upon such terms
as the Court thinks fit, but the Court may at any time require a written
statement or additional written statement from any of the parties and fix a
time for presenting the same.
E
A perusal of the abovesaid provisions shows that it is the Amendment
Act of 1976 which has conferred a statutory right on a defendant to file a
counter-claim. The relevant words of Rule 6A are "A defendant in a suit
may, in addition to his right of pleading a set-off under rule 6, ................ before
the defendant has delivered or before the time limited for delivery of defence
F has expired". These words go to show that a pleading by way of counter-
claim runs with the right of filing a written statement and that such right to
set up a counter claim is in addition to the right of pleading a set-off conferred
by Rule 6. A set-off has to be pleaded in the written statement. The counter- _,__
claim must necessarily find its place in the written statement. Once the right
of the defendant to file written statement has been lost or the time limited for
G delivery of the defence has expired then neither the written statement can be
filed as of right nor a counter-claim can be allowed to be raised, for the
counter-claim under Rule 6A must find its place in the written statement. The '·
Court has a discretion to permit a written statement being filed belatedly and,
therefore, has a discretion also to permit a written statement containing a plea
H in the nature of set-off or counter-claim being filed belatedly but needless to
R.C. ARDAWATIYA v. ANIL PANJWANI [R.C. LAHOTI. J.J I I 69

say such discretion shall be exercised in a reasonable manner keeping in view A
all the facts and circumstances of the case including the conduct of the
defendant, ·and the fact whether a belated leave of the Court would cause
prejudice to the plaintiff or take away a vested right which has accrued to the
plaintiff by lapse of time.

We have already noticed that the defendant was being proceeded ex- B
parte. His application for setting aside the ex-parte proceedings was rejected
by the Trial Court as also by the High Court in revision. In Sangram Singh
v. Election Tribunal, Kol ah, [ 1955) 2 SCR 1, this Court held that in spite of
the suit having been proceeded ex-parte the defendant has a right to appear
·- at any subsequent stage of the proceedings and to participate in the subsequent C
hearings from the tirrie of his appearance. If he wishes to be relegated to the
position which he would have occupied had he appeared during those
proceedings which have been held ex-parte, he is obliged to show good cause
for his previous non-appearance. It was clearly held that unless good cause
is shown and the defendant relegated to the position backwards by setting
aside the proceedings held ex-parte, he cannot put in a written statement. If D
the case is one in which the Court considers that a written statement should •
have been put in and yet was not done, the defendant is condemned to suffer
the consequences entailed under Order VIII Rule IO. The view taken in
Sangram Singh (supra) by two-Judges Bench was reiterated and re-affirmed
by three-Judges Bench in A1jun Singh v. Mohinder Kumar and Ors., [1964] E
5 SCR 946. Certain observations made by this Comt in laxmidas Dayabhai
Kabrawala v. Nai(rJbhai Chunila/ Kabrawala and Ors., [ 1964] 2 SCR 567,
are apposite. It was held that a right to make a counter-claim is statutory and
a counter-claim is not admissible in a case which is admittedly not within the
statutory provisions. The crucial date for the purpose of determining when
the counter-claim can be said to have ~een filed and pleaded as on par with F
a plaint in a cross suit is the date on which the written statement containing
the counter-claim is filed. Save in exceptional cases a counter-claim may not
be pennitted to be incorporated by way of amendment under Order VI Rule
17 of the CPC.

Looking to the scheme of Order VI II as amended by Act No.104 of G
1976, we are of the opinion, that there are three modes of pleading or setting
up a counter-claim in a civil suit. Firstly, the writien statement filed under
Rule I may itself contain a counter-claim which in the light of Rule 1 read
with Rule 6-A would be a counter-claim against the claim of the plaintiff
preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter- H
1170 SUPREME COURT REPORTS [2003] 3 S.C.R.

A claim may be preferred by way of amendment incorporated subject to the
,...
I
leave of the Court in a written statement already filed. Thirdly, a counter-
claim may be filed by way of a subsequent pleading under Rule 9. In the
latter two cases the counter-claim though referable to Rule 6-A cannot be
brought on record as of right but shall be governed by the discretion vesting
B in the Court, either under Order VI Rule 17 of the CPC if sought to be
introduced by way of amendment, or, subject to exercise of discretion conferred
on the Court under Order VIII Rule 9 of the CPC if sought to be placed on
record by way of subsequent pleading. The purpose of the provision enabling
filing of a counter-claim is to avoid multiplicity of judicial proceedings and

-
save upon the Court's time as also to exclude the inconvenience to the parties
C by enabling claims and counter-claims, that is, all disputes between the same
parties being decided in the course of the same proceedings. If the consequence
of permitting a counter-claim either by way of amendment or by way of
subsequent pleading would be prolonging of the trial, complicating the
otherwise smooth flow of proceedings or causing a delay in the progress of
the suit by forcing a retreat on the steps already taken by the Court, the Court
D · would be justified in exercising its discretion not in favour of permitting a
belated counter-claim. The framers of the law never intended the pleading by
way of counter-claim being utilized as an instrument for forcing upon a re-
opening of the trial or pushing back the progress of proceeding. Generally
speaking, a counter-claim not contained in the original written statement may
E be refused to be taken on record if the issues have already been framed and
the case set down for trial, and more so when the trial has already commenced.
But certainly a counter-claim is not entertainable when there is no written
statement on record. There being no written statement filed in the suit, the
counter-claim was obviously not set up in the written statement within the
meaning of Rule 6-A. There is no question of such counter-claim being
F introduced by way of amendment; for there is no written statement available
to include a counter claim therein. Equally there would be no question of a
counter-claim being raised by way of 'subsequent pleading' as there is no
'previous pleading' on record. In the present case, !he defendant having
failed to file any written statement and also having forfeited his right of filing
G the same the Trial Court was fully justified in not ente11aining the counter-
claim filed by the defendant-appellant. A refusal on the part of the Comt to
entertain a belated counter-claim may not µrejudice the defendant because in
spite of the counter-claim having been refused to be entertained he is always
at liberty to file his own suit based on the cause of action for counter-claim.

H The purpose of the defendant which was sought to be achieved by
R.C. ARDAWATIY A v. ANIL PANJWANI [R.C. LAHOTI, J.] 1171
-, moving the application dated 2.5.1995 under Order VIII Rule 6A of the CPC A
\
was clearly mala fide and an attempt to reopen the proceedings, including
that part too as had stood concluded against him consequent upon rejection
of his application under Order IX Rule 7 of the CPC. Fortunately, the Trial
Court did not fall into the defendant's trap. If only the Trial Court would
have fallen into the error of entertaining the counter-claim the defendant B
would have succeeded in indirectly achieving the reopening of the trial in
which effort, when made directly, he had already failed. There being no
written statement of the defendant available on record and the right of the
defendant to file the written statement having been closed, finally and
conclusively, he could not have filed a counter-claim.

In Mahender Kumar and Anr's case (supra) counter-claim was sought
c
to be brought on record after the filing of a written statement which was
turned down by the Trial Cou1t upon a misreading of Rule 6-A(J) that the
counter-claim filed after the filing of the written statement was ipso facto not
maintainable. This Court upset such erroneous view by clarifying the legal
position, apparent on a bare reading of the relevant provision that the only D
requirement of Rule 6-A(l) was that the cause of action for the counter-claim
should have arisen before the filing of the written statement and if that was
so, the countercclaim was not simply excluded. In Shanti Rani Das Dewanji 's
case (supra), the brief order of this Court deals with the situation that the
right to file a counter-claim does not come to an end by filing of the written E
statement once. None of the two decisions deals with a situation as before us
and the question of law arising therefrom namely whether it is permissible to
raise and plead a counter-claim though the defendant has not filed a written
statement and has also lost his right to file the same. On the contrary, in both
the cases cited by the learned senior counsel for the appellant, there was a
written statement filed by the defendant available on record and the counter- F
claim was sought to be pleaded in addition to the defence taken in the written
statement. It is difficult to conceive the defendant being conferred with a
right to attack the plaintiff by way of a counter-claim in that very suit in
which he has been held entitled not even to defend himself by filing a written
statement and pleading a positive defence to defend himself against the relief G
sought for by the plaintiff.

We may, however, hasten to observe that the averments made in the
counter-claim were prima facie false. As we have already noticed that on the
date of the institution of suit on 9.2.1987 an independent Local Commissioner,
who was also an officer of the Court being an Advocate, had carried out H
1172. SUPREME COURT REPORTS [2003] 3 S.CR
\
A inspection of the suit property and had found nothing built-up 'thereon.
Surprisingly one of the pleas raised in .the counter-claim is that the defendant
had got the plot allotted to him in the year .1980 and soon thereafter a house
was constructed on the plot and his family was living therein which story is
a blatant lie in view of the reports dated 9.2.1987 and 25.2.1987 filed by two
different Advocate Commissioners, the later one being bi-party and none
B having been disputed so far as the correctness of facts found and recorded
therein is, concerned.
< • ' • '

The third and the last submission of the learned senior counsel for the
appellant is that even if the suit proceeds for hearing ex-pane, the Court is
not absolved of its duty of deciding the case in accordance with law; rather
c an additional obligation is cast on the Court to act: with caution and be
watchful to see that in the absence of any opponent, the plaintiff does not
succeed in achieving what he is not entitled to or which he does not deserve,
and that in .no case he succeeds in over·reaching the Court. On two counts
the Trial Court has unwittingly fallen into error, submitted the learned senior
D counsel for the appellant; firstly, that the plaintiff being. entitled to further
rrlief of specific performance his suit for mere declaratior of title, recovery·
of possession and injunction was not maintainable, and secondly, that on the ·
averments made in the plaint the appropriate remedy of the plaintiff was to
have filed a suit for specific performance of the contract for sale in his favour
entered into by Shri Niwas Vaidhya and unless and until he had perfected his
.E title by execution of sale deed he could not have been declared the owner of
the property.

So far as the plea of bar as to maintainability of suit for failure to seek
further relief is concerned, we cannot find fault with the plaint as framed.
F The defendant was alleged t.o be a rank trespasser who was in the process of
committing a trespass and was allegedly- raising unauthorized ~onstruction
over the property neither owned nor legally possessed by him. The relief of
specific performance is not a further reHef to which the plaintiff is entitled
or which he could have sought for against this defendant. Thus, from the
point of view of the present defendant, we cannot find any such defect or
G infirmity in the relief sough! for by the plaintiff as would render the suit not
maintainable and liable to be thrown out at the threshold. But there is substance
in the other limb of this submission made by the learned senior counsel for
the defendant-appellant. Even ifthe suit proceeds ex-pane and in the absence
of a written statement, unless the applicability of Order VIII Rule 10 of the.
H CPC is attracted and the Court acts thereunder, the necessity of proof by the
R.C. ARDA WA TIY A v. ANIL PANJWANI [R.C. LAHOTI. J.J 1173

plaintiff of his case to the satisfaction of the Court cannot be dispensed with. A
In the absence of denial of plaint averments the burden of proof on the
plaintiff is not very heavy. A prim a facie proof of the relevant facts constituting
the cause of action would suffice and the Court would grant the plaintiff such
relief as to which he may in law be found entitled. In a case which has
proceeded ex-parte the Court is not bound to frame issues under Order XIV
and deliver the judgment on every issue as required by Order XX Rule 5. Yet B
the Trial Court would scrutinize the available pleadings and documents,
consider the evidence adduced, and would do well to frame the 'points for
determination' and proceed to construct the ex-parte judgment dealing with
the points at issue one by one. Merely because the defendant is absent the
Court shall not admit evidence the admissibility whereof is excluded by law C
nor pennit its decision being influenced by irrelevant or inadmissible evidence.

A contract for sale does not confer title in immovable property. Section
54 of the Transfer of Property Act provides that a contract for the sale of
immovable property is a contract that a sale of such property shall take place
on terms settled between the parties; it does not of itself, create any interest D
in or charge on such immovable property. However still, if a person has
entered into possession over immovable property under a contract for sale
and is in peaceful and settled possession of the property with the consent of
the person in whom vests the title, he is entitled to protect his possession
against the whole world, excepting a person having a title better than what E
he or his vendor possesses. If he is in possession of the property in part
performance of contract for sale and the requirements of Section 53A of the
Transfer of Property Act are satisfied, he may protect his possession even
against the true owner. (See - Shrimant Shamrao Suryavanshi and Anr. v.
Pralhad Bhairoma Suryavanshi (dead) by LRs and Ors., [2002] 3 SCC 676.
Section 6 of the Specific Relief Act, 1963, provides for any person dispossessed F
without his consent of immovable property otherwise than in due course of
law being entitled to claim and successfully sue for recovery of possession
thereof, notwithstanding any other title that may be set up in such suit if the
suit is brought before the expiry of six months from the date of dispossession
except against the Government. Article 64 of Limitation Act 1963 contemplates G
a suit for possession of immovable propelty based on previous possession,
and not on title, being brought within twelve years from the date of
dispossession. Such a suit is known in law as a suit based on possessory title
as distinguished from proprietory title. The law discourages people from
taking the law into their own hands, howsoever good and sound their title
may be. Possession is nine points in law and law respects peaceful and settled H
1174 SUPREME COURT REPORTS [2003] 3 S.C.R.
,...,.
A possession. Salmond states in Jurisprudence (12th Edition) - f
'These two concepts of ownership and possession, therefore, may
be used to distinguish between the de facto possessor of an object and
its de jure owner, between the man who actually has it and the man
who ought to have it. They serve also to contrast the position of one
B whose rights are ultimate, permanent and residual with that of one
whose rights are only of a temporary nature." (P.59)

"In English law possession is a good title of right against any one
who cannot show a better. A wrongful possessor has the rights of an
owner with respect to all persons except earlier possessors and except
c the true owner himself. Many other legal systems, however, go much
further than this, and treat possession as a provisional or temporary
title even against the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person whatever,
simply on the ground of his possession. Even the true owner, who
D takes his own, may be forced in this way to restore it to the wrongdoer,
and will not be permitted to set up his own superior title to it. He
must first give up possession, and then proceed in due course of law
for the recovery of the thing on the ground of his ownership. The
intention of the law is that every possessor shall be entitled to retain
and recover his possession, until deprived of it by a judgment according
E to law. Legal remedies thus appointed for the protection of possession
even against ownership are called possesso1y, while those available
for the protection of ownership itself may be distinguished as
proprietary. In the modern and medieval civil law the distinction is
expressed by the contrasted terms petitorium (a proprietary suit) and
·p possessorium (a possessory suit)." (P.60)

The law in India is not different. In Nair Service Society ltd. v. K.C.
Alexander and Ors., [ 1968] 3 SCR 163, the Cowt held - "the uniform view
of the courts is that if Section 9 of the Specific Relief Act is utilized the
plaintiff need not prove title and the title of the defendant does not avail him.
G When, however, the period of 6 months has passed questions of title can be
raised by the defendant and if he does so the plaintiff must establish a better
title or fail. In other words, the right is only restricted to possession only in
a suit under Section 9 of the Specific Relief Act but that does not bar a suit
on prior possession within 12 years and title need not be proved unless the
defendant c:an prove one. The present amended articles 64 and 65 bring out
H this difference. Article 64 enables a suit within 12 years from dispossession,
R.C. ARDA WATIY A v. ANIL PANJWANI [R.C. LAHOTI. J.] 1175

for possession of immovable property based on possession and not on title, A
when the plaintiff while in possession of the property has been dispossessed.
Article 65 is for possession of immovable prope11y or any interest therein
based on title. The amendment is not remedial but declaratory of the law.
(Para 14) The Court further held - "When the facts disclose no title in either
party, possession alone decides." The submission that a suit on bare possession B
cannot be maintained after the expiry of 6 months was termed by the Court
as 'unsubstantial' and the plea that a trespasser has a right to plead jus tertii
was branded as 'equally unfounded' by this Court (vide para 15). M.
Hidayatullah, J., as His Lordship then was, speaking for the Court quoted
with approval the maxim "Possessio contra omnes valet praeter eur cui ius
sit possession is (He that hath possession hath right against all but him that C
hath the very right). (Para 20) Taking stock of English decisions and having
noted what appeared to be a little divergence in jurisprudential thoughts, His
Lordship opined that the controversy must be taken to have been finally
resolved by Perry v. Clissold, 1907 AC 73 wherein the principle was stated
quite clearly as under:-
D
"It cannot be disputed that a person in possession of land in the
assumed character of owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title against all the world but
the rightful owner. And if the rightful owner does not come forward
and assert his title by the process of law within the period prescribed E
by the provisions of the statute of Limitation applicable to the case,
his right is for ever extinguished and the possessory owner acquires
an absolute title." (p.1174)

The conclusion in that case was summed up by this Court by holding that the
plaintiff who was peaceably in possession was entitled to remain in possession F
and only the State could evict him (in whom vested the ultimate title); the
action of the defendant was a violent invasion of his possession and in the
law as it stands in India the plaintiff could maintain a possessory suit under
the provisions of the Specific Relief Act, in which title would be immaterial
or a suit for possession within I 2 years in which the question of title could
be raised. Any view to the contrary, in the opinion of this Court, would be G
detrimental to the rule of law as the Court, borrowing from Erle J. in Burling
·'·
v. Read, (1848) 11 QB 904, held that w~.ere none has title and both the
parties are trespassers, the title must be outstanding in a third party and then
the defendant will be placed in a position of dominance. He is only to evict
the prior trespasser and sit pretty pleading that the title is in someone else. H
1176 SUPREME COURT REPORTS 120031 3 S.C.R.

A "Parties might imagine that they acquired some right by merely intruding
upon land in the night, running up a hut and occupying it before morning."
This will be subversive of the fundamental doctrine which has always been
accepted and re-affirmed in 1907 AC 73. The law does not countenance the
doctrine of "findings keepings".

B So, th1~ person in possession may not have title to the property yet if
he has been inducted into possession by the rightful owner and is in peaceful
and settled possession of such property he is entitled in law to protect the
possession until dispossessed by due process of law by a person having a title
better than what he has. A person in possession of the property cannot be
C forcibly dispossessed by another rank trespasser and even if the latter does
so, the former may be entitled to restoration of possession, because the law
respects peaceful possession and frowns upon the person who takes the law
in his own hands.

In the present case, in the ex-parte proceedings the plaintiff examined
D himself as PW I. He proved the contract for sale dated 1.12.1985 (Exhibit P/
I) entered into between Shri Niwas Vaidhya and himself. The original letter
of allotment from Society (Exhibit P/2) handed over to him by his predecessor-
in-title was tendered in evidence. He deposed to having been inducted into
possession of the plot by Shri Niwas Vaidhya and having constructed the
boundary wall in December 1985. He stated that he was the person rightfully
E entitled to the plot and yet was sought to be dispossessed by the defendant
otherwise than in due course of law. Narinder Singh Rathore, PW2 proved
the notorisation of the agreement (Exihibit P. I). Late Kishanlal, the fathcr-
in-law of Narinder Singh Rathore, PW2 was the Notary Public who had
expired on 7.12.1993, sometime before the date of recording of ex-parte
F evidence. He brought with him the Notary Register Exhibit P/B maintained
by late Kishan Lal and proved the same, also tendered the copy thereof in the
Court. Shri Niwas Vaidhya, PW3 proved the allotment of plot in his favour
by the Society and his having entered into agreement for sale of the plot with
the plaintiff followed by delivery of possession pursuant to the agreement.
He further d(:posed that till the date of agreement he was in possession of the
G plot and ever since the date of the agreement the plot was in possession of
the vendee (the plaintiff), the actual possession having been delivered by
him. Shri Krishan Chand Kataria, Advocate, appeared as PW4 and proved his
inspection report dated 25.2.1987 based on the inspection carried out by him
in the presence of both the parties. There is no reason to doubt the correctness
H of this report.
R.C. ARDAWATIY A v. ANIL PANJWANI [R.C. LAHOTI. J.) 1177

From the above evidence it is proved that the title of the· plot vests in A
Shri Niwas Vaidhya. He has entered into contract for sale for consideration
in favour of the plaintiff. Upto 1.12.1985 he was in possession of the property.
On and after 1.12.1985 the plaintiff remained in possession of the plot. He
raised a boundary wal I to protect the possession as a prospective vendee. The
contract for sale was acted upon. The defendant has not been able to prove
any right to possess the suit prope1ty - a right better than that of the plaintiff B
- much less a title in himself. This is an appropriate case where the plaintiff
must be held to have been in peaceful and lawful possession of the suit
property invaded upon by the defendant otherwise than by due process of law
and hence the status quo ante by reference to the date of accrual of cause of
action must be restored followed by incidental and consequential reliefs of C
injunctions. The defendant may then seek recovery of possession but only by
establishing his title therefor in duly constituted legal proceedings before a
competent forum. The plaintiff had rushed to the Court without any loss of
time. His averments made in the plaint and the evidence have remained
uncontroverted and unrebutted.
D
On the proven facts stated hereinabove the plaintiff is not entitled to a
declaration that he is owner of the property. It will not be out of place of
mention that it was conceded at the Bar during the course of hearing that the
plaintiff has filed a suit for specific perfonnance of agreement to sell dated
1.12.1985 against Shri Niwas Vaidhya which is pending in the Civil Court. E
The suit had to be filed because Shri Niwas Vaidhya fully supporting the
plaintiff upto the date of his being examined in the Court seems to have
changed his mind subsequently. There is no pleading and no proof of the
defendant having any title - much less a title better than that of the plaintiff
- to the suit property. He could not have dispossessed the plaintiff nor interfered
with the peaceful possession and enjoyment of the plot by the plaintiff. The F
plaintiff is, therefore, entitled to a declaration of his possessory title that he
was in peaceful possession and enjoyment of the property until 8.2.1987 on
which date his possession was threatened by the defendant by attempting to
raise unauthorized construction over the property. The judgment and decree
passed by the Trial Cou11 and maintained by the First Appellate Court and G
the High Court need to be modified suitably to bring it in conformity with
the finding arrived at by us herein.

The appeal filed by the defendam is partly allowed. The decree of
declaration that the plaintiff-respondent is owner of the suit property is set
aside. Instead it is declared that from 1.12.1985 to 8.2.1987 the plaintiff was H
1178 SUPREME COURT REl'ORTS [2003] 3 S.C.R.

A in peaceful possession of the suit plot pursuant to agreement dated 1.12.1985 J
entered into by Shri Niwas Vaidhya, the allottee of the plot from the Society,
in favour of the plaintiff. The plaintiff is also entitled for mandatory and
permanent preventive injunctions. It is ordered and decreed that the
construction, if any, raised by the defendant on the plot and the hutment
raised by his labourers shall be removed by him and the possession over the
B plot shall be restored to the plaintiff. The defendant is permanently restrained
from interfering with the possession of the plaintiff over the suit plot except
by due process of law. The suit filed by the plaintiff shall be deemed to have
been decreed by the Trial Court in the abovesaid terms. The Trial Court shall
draw up a decree consistently with this judgment. The costs shall be borne
C by the defendant-appellant upto the High Court. The costs in this Court shall
be borne as incurred.

K.K.T. Appeal Partly allowed.

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