Counter-claim is in the nature of a cross-suit and dismissal of suit does not automatically terminate proceedings in counter-claim

Kerala High Court: A Single judge bench comprising of R. Narayana Pisharadi, J. while dealing with an appeal filed against an order dismissing the petition for divorce, held that the dismissal of a suit does not have the effect of automatically terminating proceedings in the counter-claim.

In the present case, respondent- husband had filed a petition in the Family Court for granting decree of divorce. The appellant- wife filed a written statement along with counter-claim against her respondent and his parents for the return of her ornaments. The divorce petition was dismissed for default and hence the present appeal was filed by the appellant contending that the Family Court did not dispose of her counter-claim.

Relying on the judgment of  Apex Court in Rajni Rani v Khairati Lal, (2015) 2 SCC 682, the court stated that a plain reading of Order VIII Rules 6-A (2) and 6D of the Code of Civil Procedure, 1908 would reveal that a counter-claim preferred by the defendant in a suit is in the nature of a cross-suit and the statute clearly states that even if the suit is dismissed, counter-claim remains alive for adjudication. It was observed that the seminal purpose for the adoption of this approach was to avoid piece-meal adjudication.

Consequently, High Court directed the Family Court to proceed with the counter-claim filed by the appellant against the respondent and dispose it of as expeditiously as possible. On being apprised that the respondent had filed an application in Family Court for restoration of the divorce petition, the court observed that in the event that the said application is allowed, petition for divorce and the counter-claim be disposed of together by the same judgment as required under Order VIII Rule 6-A (2) CPC. [Raji Mohan v Aji A.S.,2018 SCC OnLine Ker 3487, decided on 27-09-2018]

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