MUKESH KUMAR JAIN Vs. ELIKA VEERA RAGHAVAIAH

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioners/D.1, D.2 under Article 227 of the Constitution of India against the Orders passed by learned IV Additional Senior Civil Judge, Guntur, in I.A.No.192 of 2017 in O.S.No.480 of 2013 wherein and whereby the learned trial Judge dismissed this petition filed by the petitioners/D.1, D.2 under Sec. 151 of Civil Procedure Code (in short C.P.C) and refused to permit the petitioners to file counter-claim enclosed along with the petition.

(2.) Before the trial Court petitioners have filed petition stating that they filed counter-claim petition in the suit on 26/4/2016 in I.A.No.110 of 2017, which was posted for counter on 14/2/2017 on which date the respondent/plaintiff advocate represented to the Court that without application for filing of counter-claim cannot be entertained thereby trial Court felt it necessary with such observation directed them to move separate application seeking permission to file counter-claim and closed I.A.No.110 of 2017. They submits that they represented I.A.No.110 of 2017 on 5/11/2016 along with Judgment of Hon'ble Supreme Court wherein it is held that counter-claim can be filed having the cause of action within time delivering the defence and thereby there is no need to take separate permission for filing counter-claim but to avoid unnecessary delay, they filed petition seeking permission from the Court to file counter-claim. They prays to permit them to file counter-claim.

(3.) For which the respondent/plaintiff filed counter before trial Court denying the averments in the affidavit of the 1st petitioner. It is the contention of the respondent that there are no grounds to permit the petitioners to file counter-claim seeking relief of specific performance of power of attorney, which was executed by his mother. He also stated that even in the event of agreement of sale is said to have been executed by his mother, the petitioners have to claim relief within three years from the date of death of his mother Smt.Seetharavamma. He has mentioned about the date of death of his mother due to that General Power of Attorney executed by his mother if any becomes defunt, functus-officio and no valid rights to pass, or execute any document, as a power of attorney automatically ceases, and no rights would flow. He also stated that his mother died on 10/10/1997, but the sale deeds said to have been executed in favour of petitioners/D.1, D.2 on 18/4/2001 and 23/8/2003 have no legal force. It is also the contention of the respondent/plaintiff that contents in the counter-claim filed by the petitioners is nothing but replica of contents in the written statement wherein there is no mention of relief of specific performance and the petition filed by the petitioners is only to drag on the proceedings by taking two divergent pleas, which are inconsistent, which cannot be permitted under law. He prays to dismiss the petition.