P. THANKAMMA Vs. SAJITHA G. NAIR

JUDGEMENT

(1.) Can the defendants set up by way of counter claim a prayer for setting aside a document in a suit by the plaintiff for recovery of possession under S. 6 of the Specific Relief Act, 1963 Is the Court denuded of the power to exclude the counter claim after the same is permitted to be set up by way of amendment to the written statement The suit in O.S. No. 124/2013 on the file of the court of the Subordinate Judge of Pala is filed for recovery of possession under S. 6 of the Specific Relief Act, 1963 ('the Act' for short). The defendants in the suit are none other than the daughter-in-law, grand daughter and the parents of the daughter-in-law of the plaintiff. The petitioner herein who is the plaintiff claims title and possession over the plaint schedule property under a Gift Deed (Document No. 2146/2011) executed by her son since deceased. The suit is filed on 12.4.2013 alleging that the plaintiff was forcibly dispossessed from the plaint schedule property on 5.4.2013 by the defendants.

(2.) The respondents herein who are the defendants initially filed a written statement on 26.7.2013 and later filed I.A. No. 1842/2013 on 20.11.2013 for amendment of the written statement. A prayer for setting aside the Gift Deed (Document No. 214672011) is set up by way of counter claim in the amendment to the written statement. The defendants allege that the cause of action for the counterclaim arose on 25.5.2013 when only they knew about the alleged execution of the Gift Deed. The fact that the cause of action for the counter claim arose before the defendants have delivered their defence in the instant case is not in dispute at all. The defendants maintain that it has become necessary to challenge the very Gift Deed under which the plaintiff claims title and possession over the plaint schedule property.

(3.) The plaintiff however vehemently objects to the amendment of the written statement on the ground that such a counter claim cannot be permitted to be set up in a suit of this nature. The contention of the plaintiff is that only her dispossession within a period of six months prior to the institution of the suit need be probed under S. 6 of the Act. The scope of enquiry would get enlarged if the counter claim to set aside the Gift Deed is permitted to be set up by way of amendment to the written statement. The plaintiff points out that even an appeal or review of any order or decree passed in the suit is barred under S. 6(3) of the Act. But a decree passed in the counter claim is open to an appeal and the parties would therefore be forced to file a Civil Revision Petition and an appeal suit which is incongruous. The plaintiff contends that the defendant can after all file a fresh suit to recover possession on title notwithstanding the decree in the suit based on dispossession under S. 6(4) of the Act.