Code of Civil Procedure, 1908 – Order VIII, Rule 6A – Counterclaim by defendant – Suit for declaration filed by the appellant against her sister-in-law-defendant no.1 seeking declaration that she has no right to transfer or deal with the suit property without her consent and to declare that the agreement to sell in favour of respondent No.1, as null and void – Death of defendant no.1 – Thereafter, Nazir of the Civil Courtrespondent No.2 was substituted and appointed as defendant no.1 – On 26.07.2021, respondent no.1 filed application seeking amendment of the written statement to file counter claim thereby praying for direction to respondent No.2 to accept remaining consideration and execute sale deed in respect of the said agreement to sell executed by defendant no.1 and to partition the suit property – Trial court dismissed the application by holding that a counter claim not maintainable against the co-defendant – However, the High Court allowed the application of the respondent no.1 and permitted him to file counter claim – Correctness:
Held: High Court erred in reversing the judgment of the trial court by permitting defendant no.2 to file a counter-claim against defendant no.1 and not against the appellant – Relief of specific performance as sought to be raised by defendant no.2 cannot be set up by way of a counter-claim since the same is not directed against the appellant, but is instead directed solely against the co-defendant – Defendant no.2 disentitled to raise prayer of specific performance by way of counter-claim – Further, defendant no.2 however submits that he has not only claimed the relief of specific performance, but has also sought partition of suit property to separate the share he is entitled to under the agreement – Defendant no.2 must first establish a right of claim over the property, which is absent till he succeeds against the estate of defendant no.1 and only thereafter that the question of setting up a counter claim against appellant may arise – Issues were framed on 12.02.2019 and the application for counter claim was filed almost two years thereafter, in 2021 – Defendant no.2 is seeking specific performance of an agreement dated 21.10.2011, which provided execution of the sale deed within twelve months – Defendant no.2 did not take any action – In any event, the next course of action to seek execution of the sale deed arose immediately after January 2012 when the appellant instituted a suit seeking annulment of so-called agreement to sell – Defendant no.2 did nothing – Only after the death of his vendor in October 2013 and after framing of the issues in February 2019 that the defendant no.2 decided to file the application, only after nine years of the filing of the suit, which was two years after framing of the issues. [Paras 22, 23, 25, 27]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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