Kartar Singh vs State of Madhya Pradesh

The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 25/02/2017 passed by 2nd Additional District Judge, Seoni in Civil Suit No.3-A/2013.

Brief facts of the case are that the petitioner/plaintiff has filed a civil suit for specific performance of agreement to sale. As per the plaint allegations Smt. Gomti Bai was owner of suit land and she has constructed a house on it. Thereafter by a gift deed dated 09/03/1951, part of the said house was gifted by her to her daughter Sunder Bai. Sunder Bai died issueless and the suit property devolved on her mother and brother Bhaiyalal.

Bhaiyalal partitioned his properties amongst his four sons and thereafter by registered Will dated 01/11/1989, the suit property was devolved on Swamideen. It was further alleged that Swamideen started collecting rent from one Shri Ram Namdeo and husband of plaintiff. On 15/10/2000 Swamideen agreed to sale suit property to plaintiff for a consideration of Rs.3,00,000/- and further agreed that sale deed be executed by 15/10/2000. Swamideen died on 21/02/2001 and his legal heirs i.e. defendant Nos. 1 to 3 acknowledged the sale by Swamideen and executed sale agreement dated 10/09/2003. Since, despite request made by plaintiff, the sale deed was not executed, she therefore, filed a civil suit for specific performance. The defendant No.1 filed written statement and controverted the plaint allegations. She alleged that Gomti Bai gifted the property to Sunder Bai and her name was mutated. It was further alleged that Sunder Bai did not died issueless but prior to her death, she has executed a Will in favour of the defendant

No. 4. It was further alleged that the properties were managed by defendant No.4 who used to collect rent from husband of plaintiff and other tenants. The maintainability of the civil suit on the ground of limitation was also challenged.

The legal heirs of defendant No.4 filed their written statement and alleged that Gomti Bai was the owner of the suit property and after her death it was devolved on Swamideen. A Civil suit was filed on 22/02/2010, legal heirs of defendant No.4 filed written statement on 16/11/2010 and issues were framed on 20/12/2010. Thereafter, plaintiff filed affidavit on 09/01/2015. After commencement of trial, the legal heirs of defendant No.4 filed a counter claim on 09/01/2015 alleging that plaintiff as tenant on monthly rent of Rs.600/- per month. Eviction of the suit property was sought on the ground of arrears of rent and denial of title. In the counter claim cause of action was shown as 22/10/2010 and 11/10/2010. The petitioner filed an application challenging the maintainability of counter claim contending that pursuant to commencement of trial counter claim is not maintainable.

It was further contended that counter claim for eviction is not maintainable in suit for specific performance of contract.

Learned trial Court vide order dated 25/02/2017 has dismissed the said application. Being aggrieved by that order, the petitioner has filed the present petition.

Learned counsel appearing on behalf of the petitioner argues that the order dated 25/02/2017 passed by the trial Court is illegal and void. He submits that the issues were already framed on 20/12/2010 and thereafter, plaintiff has also filed affidavits. Thus, since the trial has already commenced, therefore, at this stage, the Court should not have allowed the defendant No.4 to file counter claim. He submits that subsequent pleading will prolonged the trial. He further submits that in the present case, the plaintiff has filed a civil suit for specific performance of contract against the defendants. Legal heirs of defendant No.4 filed a counter claim and claimed eviction of plaintiff on the ground envisaged under the provision of Madhya Pradesh Accommodation Control Act. He further submits that it is settled law that in suit for eviction question of title cannot be gone into like a regular civil suit. He further submits that on perusal of counter claim it shows that the cause of action arose on 20/10/2010 and 11/10/2010. The legal notice for counter claim was alleged to be sent on 07/10/2010 and there is nothing on record to show cause of action arose on 20/10/2010 or 11/10/2010. For the said purpose, learned counsel for the petitioner relied on a judgement passed by this Court in the case of Sushila Devi vs. Khalil Ahmed,

2011(3) MPLJ, 526.

On the other hand, learned counsel for the

respondents supports the order passed by the trial Court and submits that the trial Court has not committed any error in taking the counter claim filed by the respondents on record.

Heard learned counsel for the parties and

perused the record. From perusal of the record, it reveals that the petitioner/plaintiff has filed a civil suit for specific performance of the contract. The said civil suit was filed on 22/02/2010. The legal heirs of defendant No.4 filed their written statement on 16/11/2010, thereafter issues were framed on 20/12/2010, thereafter an affidavit was filed by the plaintiff under Order 18 Rule 4 of the CPC on 09/01/2015.

After commencement of the trial, legal heirs of defendant No.4 filed a counter claim on 09/01/2015 seeking eviction from the suit property on the ground of arrears of rent and denial of title. The petitioner, therefore, filed an application challenging the maintainability of the counter claim contending that pursuant to the commencement of trial, counter claim is not maintainable. The trial Court vide impugned order dated 25/02/2017 dismissed the said application. Being aggrieved by that order, the petitioner has filed the present writ petition.

As per the Order 8 Rule 6-A of the CPC, the

defendant may file a counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.

In the present case, as per Order 8 Rule

6-A, a counter claim can be filed in respect of a cause of action accruing before the defendant has delivered his defence or before the defendant has filed the written statement. A right to file counter claim is an additional right.

In the present case, legal heirs of respondent No.4 submits that the cause of action for filing the counter claim has arose in their favour on 22/10/2010, however, they have not produced any document to show how the cause of action accrues to them on 22/10/2010. This Court in the case of Sushila Devi (supra) in para 4 & 5 has held as under :-

"4. Generally speaking, a counter claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case is set down for trial, and more so when the trial has already commenced. Refusal on the part of the Court to entertain the belated counter claim

by way of subsequent pleading may not prejudice the defendant because in spite of the counter claim having been refused to be entertained, the defendant is always at liberty to file his suit based on the cause of action of counter claim. (See: Ramesh Chanel Ardawatiya Vs. Anil Panjwani, (2003) 7 SCC 350)

In the backdrop of the aforesaid legal position, the facts of the case may be seen. In the instant case, the suit has been filed by the petitioner for eviction of the respondent under the provisions of the M.P. Accommodation Control Act,1961 on the grounds enumerated under Section 12 (1)(a) and 12(1)(c) of the Act. It is well settled in law that in a suit based on contract of tenancy the question of title cannot be gone into like a regular civil suit based on title and is incidentally decided. In the instant case, the cause of action admittedly has arisen after filing of the written statement. Thus, the counter claim falls within the purview of Order 8 Rule 9 of the Code of Civil Procedure . The issues have already been framed in the civil suit filed by the petitioner and the trial has already commenced. If the counter claim is allowed at this stage, it will have the effect of prolonging the trial. Thus, in view of the law laid down by the Supreme Court in Ramesh Chanel Ardawatiya (supra), the order of the Trial Court cannot be sustained in the eye of law.

(5.) For the aforementioned reasons, the order dated 12-3-2010 (Annexure P-1) passed by the Trial Court is quashed. In the result, the writ petition is allowed.

In the present case also, the written

statement has been filed and the issues have already been framed and the case is set down for trial. If such counter claim is not taken on record then it will not prejudice the defendant because in spite of counter claim having been refused to be entertained, the defendant is always at liberty to file his suit based on cause of action of counter claim. This Court has further observed that in the suit based on contract of tenancy, the question of title cannot be gone into like a regular civil suit.

In the present case also the defendant has

filed a civil suit for specific performance of the contract and legal heirs of respondent No.4 has filed a counter claim for eviction on the ground of arrears of rent and denial of title.

This issues cannot be decided in a suit for specific performance of contract and it is having totally a different cause of action. In such circumstances, the trial Court has committed an error in permitting the legal heirs of respondent No.4 to file counter claim.

Thus, the writ petition is allowed. The impugned order dated 25/02/2017 is hereby set aside.

However, legal heirs of respondent No.4 are at liberty to file a separate suit.