HANUMANTHAGOUDA Vs. BANDU ALIAS BANDEPPA VENKATESH KULKARNI

JUDGEMENT

(1.) THIS CRP is preferred by the first defendant in OS 5/95 on the file of the Civil Judge (Jr. Divn.), Bilagi against the non-acceptance of the counter-claim in the said suit.

(2.) THE CRP arose out of O. S. 5/95, a suit for permanent injunction filed by the respondents herein restraining the petitioner not to obstruct their peaceful possession and enjoyment of the suit land. It is submitted by the petitioner that there was somedelay in filing the written statement and after taking permission from the Court, after the examination-in-chief was completed the statement was filed with a counter-claim under Order 8, Rule 6a praying for a decree for specific performance on the basis of an agreement of sale. The counter-claim was objected before the Court below on the ground of limitation and thus the CRP came to be filed challenging such an order.

(3.) THE order of the trial Court mentioned that on 7-3-1997 the case was opened and on 26-7-1997, the plaintiff recorded his evidence and closed his evidence on 10-11-1997 and the matter was posted for defendant's evidence. Two adjournments were granted on 17-11-1997 and 27-11-1997 for adducing the evidence, but the defendants failed to take the opportunity to produce the evidence and the Court was compelled to post the matter for arguments. On 18-12-1997 the defendant came forward with the counter-claim under Order 8, Rule 6a claiming relief of specific performance of agreement of sale alleged to have been executed by the second defendant on 6-9-1985. No application seeking leave of the Court was filed. The substance of the counter-claim was that the 2nd defendant as the minor guardian of the plaintiff has executed an agreement of sale on 6-9-1985 and the cause of action said to have arisen on 13-9-1995, when the plaintiff said to have denied the agreement of sale. The defendant's contention was that the counter-claim was to avoid multiplicity of litigation. The objection of the plaintiff to the counter-claim was that the same was barred by limitation and the Court cannot accept at this stage any counter-claim under Order 8, Rule 6a. It was further contended that at no time the second defendant had acted as minor guardian of the plaintiff. The written statement having been filed on 11-7-1997, without counter-claim, he cannot file another statement with the counter-claim at a later point of time. This action is in contravention of Order 6, Rule 17, CPC. Referring to various authorities cited by the parties and relying upon AIR 1987 SC 1395, the trial Court came to the conclusion that the counter-claim cannot be permitted to be filed at the belated stage of the proceedings. Consequently, the same was rejected. It is this order that is challenged in the above CRP.