MANOHARLAL GOPICHAND NATHANI Vs. BHIKUBAI VIJAY SHINDE

JUDGEMENT

(1.) Rule. Rule made returnable forthwith and heard finally by consent of the parties.

(2.) The facts in brief of the case were that the present applicant had filed the suit for the specific performance of the contract against the respondents. When the suit was filed, respondent Nos.2 to 4 were minor. On attaining their majority, they have practically adopted/admitted the reply filed by respondent No.1, who was their mother. In addition to the admission, whatever she has averred in her written statement, they have filed an additional written statement raising various objections, including the defence that respondent No.1/mother had no exclusive right to sell the suit property. Hence, the agreement to sell on the basis of which the suit was filed was not binding upon them. In a written statement, they have also pleaded specifically that had there been any partition, defendant No.1 would not get share more than 1/8. In those circumstances, she would not be entitled to sell the share from suit land more than 1/8. A similar plea was raised in a written statement. However, on a similar plea, they have filed a counterclaim.

(3.) Learned counsel for the applicant would submit that though the title was the counterclaim, in fact, it is a suit in the nature of partition claimed by respondent Nos.2 to 4 against their mother (defendant no.1) and maternal aunt. He would further argue that reading the so-called counterclaim as a whole is not a counterclaim in terms of Order VI , Rule 8 of the C.P.C. It is a separate cause of action. Hence, the counterclaim is not as provided under the law. He would also submit that the learned Court did not consider the provisions of Order VIII, Rule 6-C of C.P.C. The claim of respondents Nos.2 to 4 cannot be disposed of by way of counterclaim, and they have to file a separate suit. He would also argue that as far as the agreement to sell is concerned, similar defences have been raised. In the counterclaim, he sought relief against co-defendant No.1 and not against the plaintiff. On these grounds, he claims that the impugned order is illegal and invalid, hence, liable to be set aside.