P L D 1982 Quetta 14 (PLP)

5. The plaintiffs/respondents did. not file any appeal in the Court of Majlis‑i‑Shoora, against the dismissal of their suit. However, the petitioner filed an appeal in the Court of Majlis‑i‑Sboora against the dismissal of their claim. The appeal was dismissed by the Majlis‑i‑Shoora, hence the present revision petition.

6. The counter‑claim of the petitioners was dismissed by the trial Court on the grounds firstly, Jairam is resident of India, he being a ZIMNE cannot claim any thing from the inheritance of Khalio Ram. Secondly the defendant's counter‑claim is not maintainable under Order VIII, rule 6, C. P. C. which relates to a suit for recovery of money, therefore, the relief for possession of land cannot be entertained as a set‑off ; thirdly the defendants had not made payment of court‑fee in accordance with law, therefore, they are not entitled to the possession of land.

7. The Majlis‑i‑Shoora, disagreed with the finding of Qazi Lehri to the extent that Jairam is not competent to file the suit in the Courts of Pakistan as he is resident of Bharat. It was held that a suit could be filed by an India national in the Courts of Pakistan. The finding of Qazi Lehri about the payment of court‑fee was also set aside by the Majlis‑i‑Shoora on the court‑fee has been paid by the defendants. It is observed that if in the opinion of the lower Court. Proper court‑fees has not been paid, such a direction could be made in accordance with section 149 read with Order VII, rule 11, C. P. C. However; the appeal of the petitioners was dismissed on the ground that they are not allowed under the law, to prefer their claim by way of filing counter‑claim, through the written statement. The finding of the learned Qazi Lehri that the provisions of Order VIII, rule 6 were not attracted was confined.

8. I have heard learned counsel for the parties.

9. The learned counsel for the petitioners has submitted that the suit of the plaintiffs was dismissed by the trial Court against which no appeal had been filed by them. Even they have not challenged the finding of Majlis‑i‑Shoora which is against them. It is contended that the petitioners are owners of the land in dispute and they had entered into an agreement with the plaintiffs, but as the suit of the plaintiffs had been dismissed, and they did not perform their obligations, therefore, the relief for possession should have been granted in favour of the petitioners. It is alleged that there is no bar in law for claiming the possession as a counter‑claim set up in the written statement. The petitioners paid the proper court‑fee. Their written statement should have been considered as a plaint.

10. The learned counsel for tine respondents has frankly conceded that the suit of the plaintiffs in the present form was not competent. He however, supported the findings of lower Court and submitted that the two Courts below have rightly held that the claim of the petitioners cannot be entertained in the present proceedings ; as Order VIII, rule 6 is not attracted. The proper remedy for the petitioner was to file a suit for the possession.

11. The learned counsel for the petitioners has referred to a number of authorities in support of his propositions that claim made by the petitioners in the written statement could be entertainable. In Vithaldas Gulabdas Seth v. The Hyderabad Spinning & Weaving Co. Ltd. A I R 1923 Bom. 24, it has been held that "for 4s equitable setoff the claim for damages must arise from the same transaction which is the subject‑matter of the plaintiff's suit. In Saya Bya and another v. Maung Kyaw Shun A I R 1924 Rang. 346, it has been observed that though strictly speaking, a counter‑claim is a form of suit unknown to the Code of Civil Procedure. There is nothing to prevent a Judge treating the counter claim as the plaint in a cross‑suit, and hearing the two together if he is so disposed and if the counter‑claim is properly stamped. The facts of the reported case are identical with the facts of the present case. In Lassoo & Sons v. Krishna Bahadur Nepali (A I R 1932 Bom. 617), the following observation is relevant ; A counter‑claim is really a weapon of offence and enables the defendant to enforce a claim against the plaintiff as effectually as in an independent action. It is allowed to be pleaded by the defendant at his option subject to certain rules in order to avoid multiplicity of proceedings between the parties". In Sri Vasudevandra Saraswathiswani v. Sridhora Siverama Moorthy (A I R 1949 Mad. 630). It has been observed :. "A counter, claim may be set up only in respect of claims as to which the party could bring an independent action in the Court in which the counter‑claim is brought. Because the plaintiff has brought an action which be was entitled to do, it does not mean that the defendant's right to put forward a counter‑claim became limitless e. g to put forward a claim which nobody else could put forward as a plaintiff," In Shoebanehan Pandey and another v. Madho Sarah Chowbay and others (A I R 1952 Pat. 73), the set‑off and counter‑claim has been explained as under : "A cross claim may be set up as a shield or a sword. When it is set up as a shield it is a defensive weapon and may be pleaded by the defendant to reduce the liability against him even to the full extent of the plaintiff's claim. A counter‑claim in the shape of a defensive measure is what is technically known as a set‑off. A set‑off may either be legal or equitable. There is a statutory provision in the Code of Civil Procedure regarding a legal set‑off. If the amount claimed be an ascertained sum it may be awarded by way of a legal set‑off under Order VIII, rule 6, C. P. C. if legally recoverable. But if the claim be for unliquidated damages for any alleged break of contract or legal obligation, the amount that may ultimately be ascertained may be claimed as an equitable set‑off, but not under the provision of the Code. The statutory provision of Order VIII, rule 6 does not preclude what is called an equitable set‑off. Therefore, the defendant may claim an equitable set‑off provided his cross demand arises out of the same transaction as the plaintiff's claim or transactions so connected in their nature and circumstances as to make it inequitable that the plaintiff's should recover and the defendants should be driven to a cross‑suit. In P. S. Moideen Baba v. Chettyar Firm A I R 1934 Rang. 160, it has been held that for either to be able to sue for specific performance there must be mutuality. Once there is that mutuality and one party can sue the other for specific performance, there is no reason why the other party also cannot enforce specific peformance. In Sarangdhar Singh and another v. Lakshmi Naryan Wahi A I R 1955 Pat. 320 it has been held that; `A counter‑claim is substantially a cross‑action and need not be an action of the same nature as the original action or even analogous thereto. Though there is no provision in the Code of making a counter‑claim, a Court has got the power to treat the counter‑claim as a plaint in the cross‑suit and hear them together, if the counter‑claim is properly stamped. The judicial pronouncement made in Ghulam v. Ghulam Ahmed and others A I R 1956 J & K 38 fully applies to the facts of the present case, where, it has been observed that a counter‑claim need not be an action of the same nature as the original action or even analogous thereto. Though there is no provision in the Code of Civil Procedure .for making a counter‑claim a Court has still power to treat the counter‑claim as the plaint in a cross‑suit and hear the two together. The only limitation is that the Court should be competent to hear the cross‑suit. In a suit for recovery of possession the defendant can set up a counter claim for specific performance of an agreement to sell and the counter‑claim can be treated as the plaint in a cross suit and both the suits can be disposed of together. In Abdul Majid v. Abdur Rashid and others A I R 1950 All. 201 it has been held: `The essence of a counter‑claim is that the defendant should have a cause of action against the plaintiff. The counter‑claim is in the nature of a cross -action and did not merely a defence to the plaintiff's claim'. In Muhammad Afzal and othees v. Haji Fazal‑ul‑Haq and another P L D 1971 S C 162 it has been held. The doctrine of equitable set off, has also been applied in suits for specific performance of contract and suits for redemption."

12. The over all conclusion from the above‑noted authorities is that a counter‑claim can be made by way of set‑off by the defendant in a suit if such counter‑claim arises out of the same transaction and the subject- matter of the dispute between the parties is the same. In the instant case the dispute between the parties is over the land. Both the parties have admitted the execution of this agreement. The ownership of Khailo Ram is not dispute. It is also not disputed that possession of the land has been delivered to the plaintiff/respondents. The contract was made on consideration. Thus the dispute between the parties relates to the land. The plaintiffs had claimed the land on the basis of the agreements executed between the parties . and the defendants bad claimed the possession on the basis of the same agreement. In substance the cause of action accrued to the parties is the one and the same. The petitioners could file separate suit for possession, but they cannot be estopped to claim the same relief in the suit filed by the plaintiffs to avoid the multiplicity of proceedings. The claim of the petitioner was entertainable in the same proceedings. In the written statement the plaintiffs claim as alleged in the plaint has been denied and a counter‑claim on the basis of the arguments has been raised. I am, therefore, of the opinion that the claim of the petitioners could not be rejected as the same was entertainable in the present proceedings.

13. The question then arises whether the matter be remanded to the trial Court for decision.

14. In the present case, proper issues have been framed. Issue No. 6 framed by Qazi is a relevant issue and reads as under :‑ "Whether the plaintiffs are entitled to the return and receipt of possession of land from defendants under Shariat Laws." The parties have led the evidence. The learned Qazi has discussed the evidence and accepted the agreement dated 6‑1‑1964. It was held by the trial Court that the two earlier agreements have been superseded by agreement dated 6‑1‑1964. The claim of the petitioners has been dismissed merely on the technical ground. I, therefore, accept this petition, set aside the judgment of two Courts below to the extent that they have refused to grant relief of possession to the Petitioners. The petitioners claim for possession of land in dispute is allowed with costs. S. A. H. Petition accepted.