[1952] EACA 274

## ORIGINAL CIVIL

#### Before WINDHAM. J.

# KARTAR SINGH trading as EXCELLENT BUILDING CONTRACTORS, **Plaintiff**

v.

### DR. F. TILLES, Defendant

### Civil Case No. 232 of 1952

Practice—Civil Procedure—Counterclaim.

The defendant pleaded a counterclaim for an amount by which his counterclaim in another suit exceeded the claim in that suit. Such other suit was between the same parties and was undecided at the time of filing the counterclaim in the present suit and no formal application had been made to consolidate.

Held (18-4-52).—The counterclaim could not be tried in the present suit under Order 12, rule 6 Civil Procedure Rules and must be struck out.

D. N. Khanna for plaintiff.

Mackie-Robertson for defendant.

DECISION.—The plaintiff-appellant applies for summary judgment for so much of his claim as is admitted in the statement of defence, under Order 12, rule 6; and for the striking out of the counterclaim as disclosing no cause of action whether by way of set off or counterclaim, under Order 6, rule 29. The claim in the plaint is for Sh. 9,221/41, and of this amount the sum of Sh. 3,000 is undisputedly put in issue in the statement of defence, so that the plaintiff asks for summary judgment for the balance of Sh. 6,221/41. Of this balance of Sh. 6,221/41 the statement of defence unequivocally admits owing to the plaintiff Sh. 3,063/41; but as regards the remainder of Sh. 3,158, the defendant counterclaims for this amount or alternatively seeks to set it off against the plaintiff's claim. The ground whereby the defendant seeks to counterclaim for this sum of Sh. 3,158 or to have it set off, as disclosed in his statement of defence and counterclaim, is that in an earlier suit between the same parties, filed in July, 1951, and still pending, and in which the present plaintiff and defendant were plaintiff and defendant respectively, the defendant counterclaimed for a sum which exceeded by Sh. 3,158 the plaintiff's claim in that earlier suit.

I cannot hold this to be a valid ground for counterclaiming for Sh. 3,158 in the present case or for seeking to have it set off. These are two independent suits, and unless and until any formal application is made to consolidate them, which has not been done, they must be treated and tried independently. While the earlier suit is pending, the question whether the plaintiff owes the defendant Sh. 3,158 upon the latter's counterclaim in that earlier suit cannot be tried in the present suit, vide Order 12, rule 6 of the Civil Procedure Rules. And since it is not a triable issue in the present suit, it cannot be held to disclose a reasonable cause of action or answer in this suit by way of counterclaim or set off.

The result is two-fold. First, I must accede to the plaintiff's application that paragraphs 6, 7 and 8 of the statement of defence, which deals with this counterclaim and set off, be struck out as disclosing no reasonable cause of action or answer, and I order that they be struck out accordingly. Secondly, summary judgment must be entered for the plaintiff for the Sh. 6,221/41, that being the amount of the claim to which no defence has been disclosed which is good in law. Judgment is accordingly entered for the plaintiff in the amount of Sh. 6,221/41, together with interest, taxed costs on that part of the claim, taxed costs of the set off and counterclaim, and costs of this application. The plaintiff may realize the decretal amount as aforesaid by execution, unless paid within three days of the ascertainment of the full amount due upon taxation being completed.