JHUNNU DAS Vs. PURNIMA DEBNATH BHOWMIK

JUDGEMENT

(1.) The respondents herein filed the Title suit No. 5 of 2004 in the Court of Civil Judge, Jr. Division, West Tripura, Agartala against the petitioner herein for specific performance of contract for sale of homestead land of the petitioner. After receiving summon from the Court the petitioner who is a lonely lady aged more than 70 years and suffering from cancer could realize that the respondents by fraud obtained her signature on the agreement for sale which she believed to be an agreement for tenancy.

(2.) The respondents being husband and wife looked after the petitioner and in due course attained her trust. They approached her to enter into an agreement of tenancy of constructing a building and believing them she executed the agreement which was for sale. Shocked as she was, she filed a written statement in the said suit and along with it she filed a written counter claim under Order VIII, Rule 6 A CPC for a decree quashing the agreement dated 28-11-2003 which was the result of fraud and deception. The said counter claim was registered and numbered as Title Suit No. 27 (Counter Claim) of 2004 arising out of Title Suit No.5 of 2004 and both were taken together for hearing. But the respondents who resisted the counter claim by filing a written statement raised preliminary issue regarding maintainability of the counter claim. The trial Court heard on the question of maintainability and by impugned order dated 24-8-2004 dismissed the counter claim as not maintainable. The present writ petition under Article 227 of the Constitution is directed against the said order on the ground that the trial Court has committed a manifest error of law leading to serious miscarriage of justice. 2A. The respondents contested the writ petition by filing affidavit-in-opposition. They contended that there was an agreement for sale of the lands which was executed by the petitioner with full knowledge and the story of fraud or deception is totally con- cocted. The relevant part of their contention which relates to the present controversy is that the counter claim raised separately under Order VIII, Rule 6A is not legally maintainable.

(3.) I have heard Mr. P. Roy Barman, learned counsel for the petitioner and Mr. D. R. Chowdhury, learned counsel for the respondents.