Co-Defendants in a suit cannot file counter claim against each other, must file separate suit

In the matter of Arvind Kumar vs Trilok Kumar Misc Petition 2480 of 2021 decided by the Hon’ble High Court of Madhya Pradesh on 12.03.2024.

FACTS: The present petition was filed by the Petitioner (plaintiff) against the order dated 07.01.2021 wherein the Civil Judge stayed the suit under section 10 of the Code of Civil Procedure, 1908. The Petitioner had filed a suit in the trial court for injunction against the defendant.

The Respondent (defendant) contested the present petition stating that the suit property is a subject matter of an already pending case (First Appeal No. 710/2016) wherein the both the Petitioner and the Respondent are co-defendants. However, the Petitioner contended that the pending Appeal is for declaration of title of the suit property filed by their mother. Whereas the suit filed by the Petitioner is for injunction and protection of his part of the property which cannot be filed by the Petitioner in the pending Appeal as the Petitioner and the Respondent are co-defendants in that matter.

ISSUE: Whether the suit filed by the Petitioner for injunction is maintainable in view of section 10 of Code of Civil Procedure, 1908?

OBSERVATIONS: The Hon’ble Supreme Court of India in Damodhar Narayan Sawale V/s Tejrao BajiraoMhaske reported in 2023 SCC OnLine SC 566 has held that as per the order VIII Rule 6A of the Code of Civil Procedure, 1908 a defendant cannot file a counter claim against a co-defendant but only against a plaintiff. The Hon’ble Supreme Court in Aspi Jal and another V/s Khushroo Rustom Dadyburjor 2013 (4) SCC 333 has discussed the test of section 10 Code of Civil Procedure, 1908 wherein the court held that the applicability of section 10 is when the decision of the previous pending suit is substantially and directly in issue with the subject matter.

The Hon’ble High Court of Madhya Pradesh observed that in the present case the inter-se dispute between the Petitioner and the Respondent is a not a subject matter of the earlier suit. Since, both parties are co-defendants in the previous suit they cannot file cross suit against each other. Therefore, the present suit filed by the Petitioner is maintainable. The High Court allowed the Petition.