SAJJAN SINGH Vs. KULWANT KAUR AND ORS.

JUDGEMENT

(1.) THIS revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) challenges the order dated 5.9.2000 passed by the Civil Judge (Junior Division), Tarn Taran allowing the application of the defendant -respondents in which a counter claim against petitioner as well as defendant -respondent No.3 has been allowed to be made. It has further been directed that reply to the counter claim be filed.

(2.) BRIEF facts of the case are that the plaintiff -petitioner has filed a suit for declaration that he is sole and exclusive owner in possession of the suit property and the two mortgage deeds dated 20.5.1999 and 21.5.1999 executed by his wife -defendant respondent No. 3 in favour of defendant -respondent Nos. 1 and 2 regarding the suit property are null and void. It has further been averred that the sale deed dated 30.12.1998 alleged to have been executed by the plaintiff -petitioner in favour of defendant -respondent No. 3 and the sale deed dated 31.5.1999 alleged to have been executed by defendant -respondent No. 3 in favour of the plaintiff -petitioner are also null and void. Prayer for consequential relief restraining defendant -respondents from alienating the suit property in any manner whatsoever has also been made alongwith the prayer that defendant -respondents be restrained from interfering in the legal and peaceful possession of the plaintiff -petitioner. During the pendency of the suit, defendant -respondent Nos. 1 and 2 filed an application under Order 8 Rule 6A of the Code setting up counter claim and asserting that the mortgage deeds dated 20.5.1999 and 21.5.1999 were executed by defendant -respondent No. 3 in favour of defendant -respondent Nos. 1 and 2 for a valuable consideration and to the extent of half share each. It has further been claimed in the application that suit for perpetual injunction restraining plaintiff -petitioner and defendant -respondent No. 3 for ever from alienating, transferring, selling, mortgaging or doing anything else in respect of the suit property be granted. Further prayer for mesne profits has also been made. The plaintiff -petitioner filed an application under Order 8 Rule 6 C of the Code claiming that the counter claim set up by the defendant -respondent Nos. 1 and 2 ought to be disposed of by filing an independent suit because it was directed against defendant -respondent No. 3 as well. It was contended that no counter claim can be set up by defendant -respondent Nos. 1 and 2 against another defendant like defendant -respondent No. 3. The Civil Judge dismissed the application of the plaintiff -petitioner and allowed the retention of counter claim made by defendant -respondent No. 1. The order rejecting the contention of the plaintiff -petitioner passed by the Civil Judge reads as under: -

(3.) SHRI B.R. Mahajan, learned counsel appearing for defendant -respondent Nos. 1 and 2 has argued that the plaintiff -petitioner and defendant -respondent No. 3 are husband and wife and the four transactions have been made by them. The first transaction of executing the sale deed in favour of defendant -respondent No. 3 dated 30.12.1998 is by the plaintiff -petitioner. Second and third transaction is by defendant -respondent No. 3 in favour of defendant -respondent Nos. 1 and 2 and the fourth transaction of executing the sale deed in favour of plaintiff -petitioner is again by defendant -respondent No. 3 in favour of plaintiff petitioner. Therefore, according to the learned counsel no useful purpose would be served by separating the claim of defendant -respondents from the claim of the plaintiff -petitioner as the claim is in respect of the same property. He has further argued that under Section 115 of the Code, the revisional jurisdiction of this Court has further been restricted and even if the application of the plaintiff -petitioner is allowed it would not decide finally the suit. Therefore, he prays for dismissal of the revision petition.