SITA RAM Vs. LEKH RAM

JUDGEMENT

(1.) This revision is instituted by the petitioner under Section 115 of the Code of civil Procedure, 1908 (hereinafter referred to as the Code) against an order passed by the Subordinate Judge, Nalagarh on 10th August, 1999 below application filed under order 2, Rule 2J read with Section 151 of the code. By the order, impugned in the present -revision, the application filed by the petitioner was dismissed.

(2.) Few relevant facts may now be stated. One Lekh Ram, son of Mani Ram resident of village Baddi filed a suit being Civil Suit No.415 of 1998 for declaration and partition or property by metes and bounds against the defendants claiming to be one of the co - sharers. The petitioner herein was arrayed as defendant No.3. It is not in dispute that the said suit is pending, defendant No. l and 2 filed a joint written statement and contended that the suit property was not coparcenary property and plaintiff had no interest therein. Defendants No.3 and 4 filed a written statement contesting the claim of the plaintiff. They also filed a counter claim under the provisions of Order 8, Rule 6A of the Code on 12th march, 1999. Objections were raised by the plaintiff against the maintainability of counter claim.

(3.) On 12th march, 1999, the petitioner herein, defendant No.3 in the suit) preferred an application, under order 2, Rule 2 read with Section 151 of the Code. In the application, it was, inter alia, stated that the petitioner (defendant No.3) and Smt. Ram Piari (defendant No.4) had filed written statement -cum -counter claim in the suit. It was also stated that defendant No. 1 with the consent of the plaintiff and defendant No.2 agreed to sell suit land to defendant No.3 by an agreement to sell dated December 2, 1996 and date of execution of sale -deed was fixed as May 15, 2000. Defendant No.3 had not filed suit for specific performance of contact inasmuch as the date of execution of sale deed had been fixed as 15th May, 2000. A prayer was, therefore, made by defendant No.3 that he reserved his right to file separate suit for specific performance of contract on or after 15th May, 2000 when a cause of action for filing a said suit would arise on final refusal by respondents -defendant No. 1 and 2 and by the plaintiff to execute sale deed. He would file such suit for refund of advance or other sums or amount found due as mentioned in the counter claim, as those, reliefs were still premature.