K.W. Chinnappa vs K.P. Ponnappa

Huluvadi G. Ramesh, J.—The plaintiffs filed a suit for recovery of possession of the property which is alleged to be in possession of the defendant. However, the defendant set up a plea that he is in possession by virtue of part performance of the agreement of sale but the same has been denied. In this regard, amendment was sought to the written statement by the defendant as a counter claim. This is based on agreement of sale. The trial Court rejected the said amendment. The said order is called in question in this writ petition.

Heard the Counsel for the respective parties.

Learned Counsel appearing for the respondents submitted that in the case of Bollepanda P. Poonacha and Another Vs. K.M. Madapa, , with regard to delayed counter claim, the Apex Court has held that the defendant''s right to file a counter claim is in the form of additional right and such relief is depending on the facts of each case and such discretion has to be exercised in a judicious manner and cannot be used contrary to statutory interdicts contained under Order 8 Rule 6A of CPC and delayed counter claim must be discouraged. One cause of action cannot be allowed to be substituted by another and in such a situation, allowing the application for amendment of the written statement is not permissible. The situation is opposite in the case on hand.

The petitioner may avail remedy of filing an independent suit for specific performance if there is any sale agreement and also if the petitioner claims to be in possession by way of part performance. Hence, the writ petition is dismissed.