Singh v Tilles (Civil Case No. 232 of 1952)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A defendant cannot counterclaim in one suit for an amount representing the excess of his counterclaim over the plaintiff's claim in another pending suit between the same parties, absent consolidation. Two independent suits must be treated and tried independently. The question whether the plaintiff owes the defendant money on a counterclaim in a pending earlier suit cannot be tried in a subsequent suit under Order 12 rule 6 Civil Procedure Rules. Such a counterclaim discloses no reasonable cause of action and must be struck out.

Outcome

Summary judgment entered for plaintiff for Sh. 6,221/41 with interest and costs; defendant's counterclaim struck out.

Facts

The plaintiff sued the defendant for Sh. 9,221/41. The defendant admitted owing Sh. 3,063/41 but disputed Sh. 3,000. As to the remaining Sh. 3,158, the defendant sought to counterclaim or set off this amount on the ground that in an earlier suit filed in July 1951 between the same parties (still pending), the defendant had counterclaimed for a sum which exceeded the plaintiff's claim in that earlier suit by Sh. 3,158. The plaintiff applied for summary judgment on the admitted amount and to strike out the counterclaim as disclosing no cause of action. No formal application had been made to consolidate the two suits.

Issues

1. Whether a defendant may counterclaim in one suit for an amount by which his counterclaim in another pending suit between the same parties exceeds the claim in that other suit.
2. Whether the plaintiff is entitled to summary judgment for the admitted portion of the claim.
3. Whether the counterclaim discloses a reasonable cause of action or answer by way of counterclaim or set off.

Orders

• Paragraphs 6, 7 and 8 of the statement of defence struck out as disclosing no reasonable cause of action or answer.
• Summary judgment entered for the plaintiff in the amount of Sh. 6,221/41.
• Interest awarded.
• Taxed costs on that part of the claim awarded to the plaintiff.
• Taxed costs of the set off and counterclaim awarded to the plaintiff.
• Costs of this application awarded to the plaintiff.
• Plaintiff may realize the decretal amount by execution unless paid within three days of ascertainment of the full amount due upon taxation being completed.

Rules and key headnotes

Legislation cited (2)

• Civil Procedure Rules Order 12 rule 6
• Civil Procedure Rules Order 6 rule 29

The original judgment as reported. Read the original PDF before relying on any passage.