RAVEENDRAN Vs. MRUTHYUNJAYAN

JUDGEMENT

(1.) Revision petitioner is the plaintiff in O.S. 71 of 1985 of the Munsiff's Court, Kayamkulam. The defendants filed written statement in which they set up a counter claim to the effect that there was an agreement of sale of the plaint schedule property between the plaintiff and the 2nd defendant on 24-10-1976 and that advance was also paid. The defendants prayed for a decree for the specific performance of the above agreement. Plaintiff filed an application under O.8 R.6C of the C.P.C. for exclusion of the counter claim on the ground that the claim for specific performance is time barred, that the second defendant was not willing to perform her part of the contract and that the cause of action is different from that of the suit. The learned Munsiff dismissed the petition holding that the counter claim set up by the defendants has to be necessarily considered in the suit.

(2.) Learned counsel for the plaintiff submitted that the only question to be considered in the suit is regarding the declaration set up by the plaintiff and hence there is no scope for any counter claim. Counsel for the defendants submitted that in view of O.8 R.6A of the C.P.C. the above contention is not at all tenable.

(3.) In Para.8 of the plaint it is alleged that the plaintiff and the second defendant had entered into an agreement whereby the former agreed to sell the property for Rs. 13,000/- and that the latter had paid Rs. 8,000/-. The agreement is stated to have been executed on 4-10-1976. The plaintiff's case is that the second defendant committed default of the agreement and that the agreement is no longer in force. Defendants 1 and 2 refuted the allegations in the plaint. In Para.13 of the written statement they have set up counter claim for specific performance of the agreement.