1. ' ZAFFAR HUSSAIN MIRZA, J.-This appeal by right under Article 185(2) (d) of the Constitution, arises out of the judgment, dated 4-10-1981, of a learned Single Judge of the Baluchistan High Court in Civil Revision No, 55 of 1980, whereby the judgment of the two Courts below to the extent that relief of possession to the respondents was refused, was set aside and a decree for possession was passed in their favour.
2. ' The facts leading to this appeal may be briefly stated as follows :- ' One Khiluram entered into an agreement with appellants Nos. 1 to 4, for the sale of agricultural lands in dispute comprising several hundred acres situated in Mauza Kamei, Tehsil Dhadar, District Kachhi, Baluchistan, on 20-8-1963 for lump sum consideration of Rs, 62,000. In pursuance of this agreement, Kilogram received a sum of Rs, 12,000 at the time of the execution of the agreement and the balance of the consideration amount comprising Rs, 50,000, was agreed to be paid upon execution and registration of the conveyance deed in favor of the said purchasers within a month.
3. On 30-9-1963, however, the parties entered into another agreement confirming the earlier agreement and also reciting the fact that Khiluram had received Rs, 40,000 out of the outstanding balance of consideration and further agreeing to receive the remaining balance of Rs, 10,000 at the time of execution and registration of the conveyance deed, for which the time originally stipulated in the first agreement was also extended by a further period of three months. In the events that happened, Kilogram came to execute yet a third agreement with appellants Nos. 1 and 3 to 5, on 6- 1-1964, authorizing the said appellants to invest Rs, 80,000 in the said lands for the purpose of developing and cultivating it. It is not disputed that appellants Nos. 1 to 4 had come into possession of the land in dispute in pursuance of the first two agreements.
4. ' On 8-7-1970, Khiluram, filed a suit against all the appellants in the Court of the Assistant Commissioner, Kachhi, seeking a declaration that agreements, dated 20-8.1963 and 6-1-1964 (the second and the third agreements were without consideration and as such void, and also prayed for a decree for possession. The plaint seems to have been returned to him by the Assistant Commissioner on the round that it was beyond the pecuniary limits of his jurisdiction and as such it was represented before the Deputy Commissioner, Kachhi, on 13-11-1970. While this suit was pending, Kilogram died on 18-6-1971, but since an application under Order XXII, rule 3, C. P. C. Was submitted by his grandson and legal representative, Eshwardas, respondent No, 2 herein, with inordinate delay, it was dismissed by the Qazi at Lehri by his order, dated 21-11-1972. An appeal filed by respondent No, 2 before the Majlis-e-Shoora, Kalat Division, did not succeed and was dismissed by order, dated 15-6-1973. Respondent No, 2 then filed a civil revision before the High Court of Baluchistan under section 115, C. P. C., which was also dismissed as withdrawn on 31-7-1977.
5. ' In the meantime, however, on 19-3-1972, the appellants had filed a separate suit in the Court of Deputy Commissioner, Kachhi at Dhadar, against Jairamdas son of Khiluram, respondent No. 1 herein, Lakhi Bai widow of Khiluram, and respondent No, 2 herein was impleaded as co-defendant subsequently. This was referred to the Court of Qazi at Lehri where it was registered as Suit No, 66 of 1975. In this suit the three defendants filed separate written statements and respondent 1 in his written statement filed on 27-7-1974 pleaded a counter claim averring that the appellants had committed a breach of the agreement, dated 6-1-1964, and therefore, a decree for possession be passed in his favour against the appellants.
6. ' After considering the evidence produced by the parties on the issues framed on their pleadings, the learned Qazi dismissed the suit as barred by time and also dismissed the counter claim of respondent No. 1, on the grounds inter alia, that the same was not maintainable under Order VIII, rule 6, C. P. C. The appellants did not file any appeal against the dismissal of their suit but the respondents being aggrieved by the judgment of the learned Qazi filed an appeal before the Majlis-e-Shoora, Kalat Division at Mustung, which maintained the judgment of the learned Qazi on the same ground as prevailed with him and dismissed the appeal by their judgment, dated 10-3- 1980. The respondents then challenged the judgment of the Majlis-e-Shoora in a revision before the High Court of Baluchistan at Quetta, which was allowed by a learned Single Judge by the impugned judgment, dated 4.10-1981. The learned Judge disagreed with the view taken by the two Courts below and held that the counter claim set up by respondent No. 1 was maintainable in law and granted him a decree for possession.
7. ' Before us in support of this appeal, the following contentions have been raised :-
(1) That the counter claim of the respondents was not maintainable in terms of Order VIII, rule 6, C.
8. P. C. Or as an equitable set-off, for the reason that it does not arise out of the same transaction on which the suit filed by the appellants was based.
(2) That the suit filed by Khiluram for possession of the lands in dispute having abated as a result of his death and non-joinder of his legal representatives, no fresh proceedings even by way of a counter claim on the same cause of action were entertain able.
(3) That in the circumstances of the case, the High Court was not justified to decide the case on merits but had to remand the same to the trial Court for further proceedings and decision.
9. ' The contentions advanced on behalf' of the appellants may now be taken up in the order in which they are set out above. Before dealing with the first contention, it may be stated that in considering the submission of the learned counsel appearing for the respondents, as to the maintainability of the counter claim set up by them in their written statement, the learned Single Judge of the High Court extensively referred to the case-law from the various High Courts in the Sub-Continent and summarized his conclusion in the following observations "The overall conclusion from the above-noted authorities is that a counterclaim 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."
10. ' The learned Judge then proceeded to examine the facts of the present case in the light of the evidence on record and the findings arrived at by the trial Court and after taking into consideration the same, finally held that "In substance the cause of action accrued to the parties is the one and the same". Having reached this conclusion he further held that the counterclaim could not be rejected on the legal objection raised in the proceedings.
11. With all due respect to the learned Judge, it may at once be stated that the ratio of the decisions reviewed by him was not correctly stated as a proposition of law, as reproduced in his own words, on the basis of which he proceeded to decide the case before him. The Code of Civil Procedure does not provide anywhere, for the setting-up of a counter claim by the defendant in his written statement in answer to a claim of the plaintiff in the sante snit. The only relevant provision in regard to a claim on the part of the defendant, is laid down in Order VIII, rule 6, C. P. C., which reads as under "6. Particulars of set-off to be given in written statement.-(1) Where in a suit for the recovery of money the defendant claims to set-off the plaintiff's demand, any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.
(2) Effect of set-off.-The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off, but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off."
12. ' The above provisions of law, in terms strictly construed, permit a defendant to raise in his defence what is called a legal set-off. The essential conditions of legal set-off are as follows "I. The suit must be one for the recovery of money. II. As regards the amount claimed to be set-off-
(a) it must be an ascertained sum of money ;
(b) such sum must be legally recoverable ; (c)it must be recoverable by defendant or by all the defendants if more than one ;
(d) it must ,be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one ; (e)it must not exceed the pecuniary limits of the jurisdiction of the Court in which the suit is brought ; and
(f) both parties must fill, in the defendant's claim to set-off, the same character as they fill in the plaintiffs' suit.
13. ' Thus a plea of legal set-off, in its essential character is a defence and a counter claim combined, defence to the extent of the plaintiff's claim and a claim by the defendant in the suit itself for the balance. This rule read with Order XX, rule 19, C. P. C., permits what is in essence a counter claim of a specific kind, namely, where it is for an ascertained amount exceeding the plaintiff's claim in his suit for recovery of money. The doctrine of equitable set-off permits on equitable considerations a defendant, to raise a plea of set-off even in respect of an unascertained sum of money on the principle that if there be some connection between the plaintiff's claim for a debt and the defendant's claim to set off, it will be inequitable to drive the defendant to a separate suit.
14. Instances of such equitable set-off are when the claims of the two parties arise out of the same transaction or transactions which can be regarded as one transaction or the cross demands are so connected in their nature and circumstances that they can be looked upon as part of one transaction. Such a set-off was called an equitable set-off, as it was allowed by the Courts of Equity in England, as distinguished from a legal get-off 41 was allowed by the Courts of Common Law in respect only of an ascertained sum. In a number of decisions in the Sub-Continent, it has been held that although a claim for equitable set-off falls outside the provisions of Order VIII, rule 6, C. P. C., it is permissible for a defendant to plead an equitable set-off as effectively as a legal set- off. This view find support from the proposition that the provisions of the Code regulate procedure only, and they have not the effect of taking away any right of set-off which a defendant may have independently of its provisions. Order XX, rule 19 is a further statutory recognition of the right of a defendant to plead an equitable set-off and obtain relief thereon. However, there is a well- recognized distinction between a set-off and a counter claim. Although in one sense both are identical inasmuch as they are cross actions on the part of the defendant but a set-off is essentially a weapon of defiance. If the defendant succeeds in establishing it, it serves the purpose of answering to the plaintiff's claim either wholly or pro tanto because a set-off is really a debt claimed by the defendant against the plaintiff to counter-balance a deb claimed by the plaintiff against the defendant. A counter claim, on the other hand, is essentially a weapon of offence and is not really relevant as a plea in defence to the claim of the plaintiff. It enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action. Its essential nature is that of a cross suit pleaded through the means of the written statement in the same suit. Having regard to these essential features of the character of a counter claim, it is plain that a right to make a counter claim is not admissible if it does not fall within the ambit of Order VIII, rule 6, C. P. C., or qualify as an equitable set-off. The right to make a counter claim has been always held to be a statutory right and as already observed there is nothing in the Code of Civil Procedure conferring the right, to plead such counter claim, upon a defendant. Thus it has been held in certain decisions of the Privy Council and of the High Courts that a counterclaim was not admissible in the Muffasil Courts.
15. ' The above exposition of the correct legal position would illustrate sufficiently the erroneous proposition of law on which the learned Single Judge proceeded, namely, that a counter claim can be made by way of set-off by the defendant in a suit if such counterclaim arises out of the same transaction and the subject matter of the dispute between the parties is the same. The conditions referred to by the learned Judge really visualized a legal set-off or an equitable set-off, but in no way can be attracted in the case of a counterclaim, which has already pointed out, is in essence a cross suit and where permissible under the procedural dispensation applicable to a Court of law would be free from the fetters contemplated in the conditions mentioned by the learned Judge, for the simple reason that a plaintiff in a cross suit would be free to see up a claim without the limitation as to identity of transaction or subject-matter.
16. ' Learned counsel for the appellants in support of his first submission placed reliance on :--
(1) Currimbhoy & Co. v. Creet (Lord Thankerton) AIR 1933 P C 29,
(2) Vithaldas v. The Hyderabad Spg. & Wg. Co. AIR 1923 Bom. 24,
(3) Muhammad Afzbl v. Haji Fazal-ul-Haq and PLD 1971 SC 162, and
(4) Bhupendra Narain v. Bahadur Singh AIR 1952 SC 201.
17. ' Out of these decisions, the last two are not pertinent as they deal with the question of admissibility of a claim as an equitable set-off and do not deal with the question of a counter claim pleaded by the defendant. The Bombay case deals with the case of a counter claim under the rules of the Bombay High Court on its original side and the decision proceeds on the basis that if a separate suit on the subject-matter of the counter claim had been brought the Court would have no jurisdiction to try such suit. It is, therefore, not relevant for present purposes. In the Privy Council case, the admission of the counsel for the defendants that in the Muffasil Court, a counter claim is incompetent, was taken as the basis and the point under consideration disposed of. I have already stated that in absence of express provisions in the Code of Civil Procedure, to that effect, a defendant cannot plead a counter claim as of right. In view of the aforesaid, it is right for the learned counsel for the appellants to contend that the counter claim of the respondents cannot be supported by the provisions of Order VIII, rule 6, C. P. C., or as an equitable set-off for the simple reason that it is not a money claim, which is a common ingredient for both kinds of set-off. It is an independent claim for possession sought to be enforced by the defendant in his written statement.
18. It has, however, been held that although a counter- G claim which is neither a legal set-off nor an equitable set-off, yet there is nothing in law-statutory or otherwise, which precludes a Court from treating a counter claim as a plaint in a cross suit. The reasons advanced in support of this view that the Court has such a power are that, although a counter claim incorporated in the written statement does not conform to the requirements of the Code relating to contents of a plaint, this by itself is not sufficient to deny the Court, the power and jurisdiction to read and construe the pleadings in a reasonable manner, that the Court is not prevented from separating the written statement proper from what was described as a counter claim and treating the latter as a cross suit, and if the counter claim contains all the necessary requisites sufficient to be treated as a plaint making a claim for the relief sought, it would be open to a Court to convert or treat the counterclaim as a plaint in a cross suit. If the Court is so inclined, then the date of filing of such converted plaint in a cross suit will be the date on which the written statement containing the counter claim is filed and the maintainability of the cross suit contained in the counter claim would be determined with reference to that date. There are very weighty considerations in support of the view and I have no hesitation in accepting it as the correction exposition of law. In H. M. Saya & Co., Karachi v. Wazir Ali industries, Ltd., Karachi (1), the question was whether a stranger to a suit or a proceeding is entitled to file an appeal from an order passed therein, this Court held that although there is no express provision to that effect in the Code of Civil Procedure, it cannot be understood to amount to a prohibition and "the Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for". It was postulated in this case that "the Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same". To sum up the conclusion, the correct position in law is that the plea set up by the respondents in the counter claim for recovery of possession was not admissible as a set-off but was really of the nature of a counter claim proceeding on the basis of an independent cause of action, which the Court had the power to convert as a I plaint in a cross suit, if such suit is otherwise not barred under any provision of law and then to try and dispose it of alongwith the suit filed by the appellants. Before considering the effect of this conclusion on facts of this case, it would by pertinent first to dispose of the second contention advanced on behalf of the appellants. {{FOOT NOTE}}
(1) PLD 1969 SC 65 {{FOOT NOTE}} ' As to the second contention, it was argued that respondent No, 2 is claiming relief on the basis of the same cause of action on which Khiluram filed the suit, which as already observed, abated on his death on 18-6-1971 as none of his legal representatives was substituted within the prescribed time and the application of the said respondent was dismissed by the original Court. This order remained in the field as it was maintained in appeal and the revision filed by the respondent was also dismissed. There is no controversy before us between the parties that the suit filed by Khiluram had abated in view of the aforesaid since the death of Khiluram occurred before the amendment of Order XXII, C. P. C., by the Law Reforms Ordinance, 1972, which was not retrospective in operation.
19. Under the original unlamented provisions of sub-rule (2) of rule 3 of Order XXII, C. P. C., a suit would undoubtedly abate on the death of a sole plaintiff as the right to sue was based on title in the immovable property. Once the suit abated under Order XXII, rule 9 of the said Order provided for a bar on fresh suit to be brought on the same cause of action. The position that emerges from this state of facts would be that respondent No, 2 who claimed relief in the right of deceased Khiluram would not be entitled to ask the Court to treat his counter claim as a plaint in a cross suet if it was barred under rule 9. It was, however, contended on behalf of the respondents that although the suit filed by Khiluram had abated, since the cause of action for a decree for possession was a continuing cause of action, the abatement of the first suit did not prevent the filing of a fresh suit on the same cause of action. The argument as that since the finding of the Court that the appellants were not entitled to ask for specific performance of the contract between them and Khiluram had attained finality, their position was reduced to that of trespassers and, the before, successive suits could be filed against them for possession on the basis of the continuing cause of action. Reliance in this behalf was placed on Bazlur Rahman v. Syed Ali (1), in which it was held that rule 9 of Order XXII, C. P. C., was no bar to instituting a fresh suit for partition even after the abatement of a previous such suit. Similar view was approved by this Court in Abbas Khan v.
20. Muhammad Gul (2), whereby it was held that the abatement of a suit for redemption of a mortgage would not be a bar for a second suit for the same relief, because the abatement of the suit was not a decree of the Court extinguishing the right of redemption. The bar contained in Order XXII, rule 9, C. P. C., is restricted in its terms to the filing of a fresh suit "on the same cause of action".
21. The question that requires to be determined is, therefore, whether in the facts of the present case the right to obtain possession by the respondents from the appellants was extinguished as a result of the abatement of the suit filed by Khiluram through whom respondent No. 1 claim title to the property. The right to obtain partition of the joint property by a co-sharer is a right which is incidental to joint ownership and, therefore, the abatement of such a suit does not bring an end to the right for separate possession of the share of a co-sharer as long as his title continues in the joint property. No authority was cited by the learned counsel for the respondents in support of the proposition that the continuous wrongful possession of the appellants furnished a continuing cause of action to the respondents, so that abatement of the previous suit did not bar a fresh suit for the same relief. The question can be determined by applying the test whether in the facts and circumstances of this case the cause of action arose de die in diem so that throughout the period during which the appellants remained in wrongful possession of the property, the respondents will be subjected to a continuous wrong from day to day. In the case of a con-I tinning wrong each successive invasion of the plaintiffs' right or the continuing K {{FOOT NOTE}}
(1) PLD 1967 Dacca 809 (2) 1968 SCMR 1067 {{FOOT NOTE}} ' invasion resulting in a continuous injury, furnishes a recurring cause of action, so that even if a suit filed in respect of such wrong is once abated, the subsequent suit is not filed on the same cause of action strict sensu although it may be filed on a similar cause of action. But if the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. Guidance in this matter may well be sought from the provisions of section 23 of the Limitation Act which, inter alia, provides that in the case of a continuing wrong, a fresh period of limitation begins to run at every moment of the time during which the wrong continues. In this connection it has, however, been laid down that if a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. But distinction must be drawn between the injury caused by the wrongful act and what may be described as the effect of such injury. Thus it was observed in Khair Muhammad Khan v. Mt. Jannat (1) : "In considering whether the particular act complained of constitutes a "continuing wrong" within the meaning of S. 23 for which the cause of action arises de die in diem it is necessary to keep in mind the distinction between an "injury" and the "effects of that injury". Where the injury complained -of is complete on a certain date, there is no "continuing wrong" even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt up by the aggrieved person on subsequent occasions, intermittently or even continuously, does not make the injury a "continuing wrong" so as to give him a fresh cause of action on each such occasion. If however the act is such that the injury itself is continuous then there is a "continuing wrong" and the case is governed by S. 23."
22. ' The question in this case was whether the encroachment upon common property of the residents of the neighborhood by erecting a chabutra by the defendants constituted a continuing wrong so that the suit was governed by section 23 of the Limitation Act. The learned Judges held that the injury was complete at the time of the construction as it amounted to a complete dispossession and ouster of the plaintiffs. It was, therefore, held that this was not a case of a continuing wrong but a wrong which was completed at the time the construction was put up. The learned Judges were of the view that the cause of action to the aggrieved party arose once and for all at the date of the ouster and that it did not arise afresh every day that the structure exists. In the present case similarly, the case of Khiluram in his plaint was that consequent to the agreement, dated 6-1-1964, half share of the property in dispute was transferred in the name of the appellants in the record- of-rights. But in breach of contract, the appellants failed to invest any part of the stipulated amount of Rs, 80,000 on the development of the land and "unlawfully took possession of the entire land and water, i. e. One-half share of the plaintiff as well". The prayer in the suit was for a declaration that agreements, dated 20-8-1963 and 6-1-1964 were unlawful and without consideration; and for possession of the suit lands and water. In his written statement, respondent No, 2 in the subsequent suit filed by the appellants, set up substantially the same pleas and sought a decree for possession by way of counter claim.
23. ' Applying the test laid down above, it is clear that this is also a case of forcible dispossession or ouster and, therefore, the injury was complete when {{FOOT NOTE}}
(1) AIR 1940 Lah. 359 {{FOOT NOTE}} ' Khiluram was dispossessed or ousted from possession. There is, therefore, no question of a continuing wrong although the effect of his dispossession resulted in depriving the lawful owners of the right to their possession. Accordingly, no fresh suit could be filed by the legal representatives of Khiluram on the abatement of his suit.
24. ' In view of the aforesaid conclusion, there was no scope for the Court to treat the written statement of the first respondent as a cross suit because such a suit would be barred under Order XXII, rule 9, C. P. C. The impugned order cannot, therefore, be sustained on any view of the matter. The proper order for the learned Judge to pass was to dismiss the revision on the ground that the counter claim set up by the respondents was not admissible under Order VII, rule 6, C. P. C., as it was founded on an independent cause of action which stood extinguished as a result of the abatement of suit filed by Khiluram in this view of the matter, it is not necessary to consider the third contention advanced by the learned counsel for the appellants.
25. ' In the result this appeal succeeds and the judgment of the learned Single Judge of Baluchistan High Court, dated 4-10-1981 is hereby set aside. The parties are, however, left to bear their own costs.