RAMJI NARAYAN GHUGE Vs. RATAN WAGHU BHUJBAL

JUDGEMENT

(1.) THE question for consideration is whether, upon dismissal of a suit for specific performance of contract of sale of immovable property instituted by the plaintiff in possession, a decree for possession against the plaintiff could be passed, in the absence of a counter claim seeking such relief.

(2.) ON April 21, 1979, the defendant Nos. 1 and 2, sons of the owner, Waghu, who are the respondents Nos. 1 and 2, respectively, to this appeal, agreed to sell to the plaintiff two agricultural lands Gat Nos. 119 and 120 situated at village Manori in District Nasik admeasuring, respectively, 27 gunthas and 6 acres and 13 gunthas, for a total consideration of Rs. 15,000/ -. They had received a total amount of Rs. 12,299/ - as earnest money. The defendants Nos. 3 and 4 who are the daughters of Kalu the brother of Waghu and who have a share in the property, were not parties to this agreement of sale. At the trial, the defendant No. 1, who was a party to the agreement of sale did not rile written statement. The defendant No. 4, too, did not file written statement. It is the defendants Nos. 2 and 3 who filed written statement. The Suit No. 233 of 1982 for specific performance of the aforesaid agreement was dismissed by the Civil Judge, Junior Division, Dindori. The defendants Nos. 1 and 4, however, appeared in person in the Civil Appeal No. 474 of 1982 before the District Court. None of the defendants filed a counter -claim claiming possession of the property. Admittedly, the plaintiff is in possession of the property pursuant to the agreement of sale.

(3.) THE error in the decree appealed from will be clear form a careful look at certain provisions of the Code of Civil Procedure. Rule 13 of Order VIII of the Code of Civil Procedure enables a defendant to set up, by way of counterclaim, against the claims of the plaintiff 'any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit'. Such counter -claim shall have the same effect as a cross suit Order VIII Rule 13 of the Code of Civil Procedure. The Court is empowered to pronounce a final judgment in the same suit both on the original suit and on the counter -claim Order VIII Rule 13 of the Code of Civil Procedure. The defendant seeking to rely upon any ground in support of his right of counter -claim shall, in his written -statement, state specifically that he does so by way of a counter -claim Order VIII Rule 14 of the Code of Civil Procedure. The plaintiff who would be the defendant in the counter -claim is entitled to file a written -statement in reply to the counter -claim Order VIII Rule 18 of Code of Civil Procedure. Even if the suit is stayed, discontinued or disposed off, the counter -claim may be continued and proceeded with as if it were a suit Order V1II Rule 20 of Code of Civil Procedure. If there is no reply to the counter -claim by the plaintiff, the counter -claim may be set down for judgment and where a counterclaim is established, judgment and decree in favour of the person making the claim may be made Order VIII Rule 21 of Code of Procedure.