Co-Defendants Can't File Counter Claims Against Each Other, Must File Separate Suit Regarding Dispute Over Suit Property: MP High Court

Madhya Pradesh High Court has recently clarified that co-defendants in a suit cannot file cross-suits against each other, and for a separate dispute about the suit property, a separate suit can be filed to which Section 10 of CPC won't be applicable.

While adjudicating the issue, the single-judge bench of Justice Vivek Rusia observed that the inter se dispute between the plaintiff and the defendant in the suit which was stayed by the trial court under Section 10 CPC is not a subject matter of the earlier suit.

“…the dispute between plaintiff and defendant is altogether different dispute in which plaintiff is seeking decree for possession and protection of his suit land. Plaintiff and defendant both are co-defendants in the previous suit and it is a settled law that the co-defendants cannot fight against each other as they cannot file a counter claim against each other…”, the bench sitting at Indore noted.

The court added that the dispute between the plaintiff and defendant who are co-defendants in the earlier suit can only be dealt with in a separate suit.

The plaintiff and the defendant are brothers who are co-defendants in the earlier suit/ pending First Appeal before the High Court in Kesharbai & Ors. v. Arvind Kumar & Ors. The first appeal arose from a previous suit filed by the mother and two other brothers against the plaintiff-defendant brothers. The first suit was filed in reference to the whole of a Joint Hindu Family property; the plaintiffs sought for declaration of title as a joint owner of the suit property and for injunction that the defendant-brothers must be restrained from selling the same to anyone.

However, the present suit is filed by Defendant No.1 brother against Defendant No.2 brother alleging that the latter encroached upon the suit property over which he has a valid title and dispossessed him.

The court relied extensively on Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor, (2013) and Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404 to underscore that co-defendants should contest separately when there is a dispute between them regarding the suit property. In such instances, the bar imposed by Section 10 of CPC [Stay of Suit when the matter in issue is directly and substantially in issue in a previous suit] will not be attracted.

In Aspi Jal, the apex court had held that the test for applicability of Section 10 CPC would be whether, on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. Supreme Court had then observed that Section 10 won't apply when few of the matters in issue are common and will apply only when the entire subject matter of the controversy is same.

After referring to the above precedents, the court allowed the miscellaneous petition against the 07.01.2021 order of the civil judge staying the proceedings in the suit filed by the petitioner-plaintiff Arvind Kumar.

Advocate Jitendra Bharat Mehta appeared for the petitioner-plaintiff. Advocate Vinay Puranik appeared for the respondent-defendant.

Case Title: Arvind Kumar v. Trilok Kumar

Case No: Misc. Petition No. 2480 of 2021

Citation: 2024 LiveLaw (MP) 55

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