Counterclaims Have Independent Status, Can Continue Despite Dismissal Of Primary Suit: Jammu & Kashmir High Court

Justice Sindhu Sharma thus dismissed a revision petition challenging an order passed by the trial court which had allowed the respondents' application and restored a counterclaim to its original number and directed that same be proceeded in accordance with law.

"It is clear that even, if the suit was dismissed, the trial court had to proceed with the counter claim raised by the defendant as an independent suit and the same had to be decided in accordance with law."

The case revolved around a suit for declaration of title with a relief of injunction, filed by the petitioner in the court of the Principal District Judge, Srinagar in response to which the defendants not only responded with a written statement but also raised a counterclaim, seeking to nullify a purported Will/Adoption deed.

While the main suit was later dismissed due to non-prosecution, the respondents, seeking to resurrect their counterclaim, filed an application with a prayer to retrieve and restore the counterclaim which came to be allowed.

Assailing the order the petitioners contended that the respondents filed a request to reinstate their counterclaim a significant two years after the initial order, despite having full knowledge of its existence. This substantial delay in taking action is deemed unjustifiable and raises questions about the validity of the application, they argued.

The petitioners further submitted that due to the demise of the plaintiff, it was imperative for the respondents to include the legal representatives of the deceased as parties in the case. However, the respondents failed to fulfil this crucial requirement before proceeding with their application for restoration, they added.

Addressing the key contentions presented by both parties the Court observed that once a counterclaim is raised by the defendant, it operates as a distinct legal entity. Clarifying that the counterclaim's fate is not irrevocably tied to that of the main suit the bench added that even if the main suit is stayed, dismissed, or discontinued, the counterclaim can still proceed, as stipulated under Order 8 Rule 6 D.

“The respondent/defendant thus was well within its right to bring to the notice of the court that the counter claim filed by him has also been consigned to records without any order in terms of order dated 30.04.2016, which is contrary to mandate of Order 8 Rule 6-D”, the bench explained.

Emphasising the principle that the act of the Court should not disadvantage any party the bench cited the maxim actus curiae neminem gravabit, and maintained that if the Court's action causes undue prejudice, it is the Court's obligation to rectify such wrongs, neutralising any undeserved advantages gained by a party.

Additionally, the Court addressed the issue of impleading legal representatives in cases where the original party has passed away and clarified that the requirement to implead legal representatives arises only when the counterclaim is revived and restored to its original status. Citing Syed Bilal Ahsan v Wastana Rubi & Others, the bench stressed that abatement provisions of Order 22 do not apply to non-pending cases.

It was observed that the respondents could not be put in a disadvantageous position by the order of the court, since it resulted in consigning their counterclaim. Thus, the bench held that the order passed by the trial court did not suffer from any illegality or irregularity.

Accordingly, the revision petition was dismissed.

Case Title: Abdul Rashid Dar and others Vs Ghulam Qadir Dar and others

Citation: 2023 LiveLaw (JKL) 218

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