GH Vs. GH AHMAD

JUDGEMENT

(1.) THIS is the defendants second appeal and has arisen in the following circumstances: - A suit for the recovery of possession of 3 kanals and 6 marlas of land specified in the plaint situate in village Udarana, Tehsil Bhaderwah, was instituted in the Court of Subordinate Judge, Bhaderwah on 7th Chet 2007. In the plaint it was admitted that possession of the land had been delivered to the defendant by the plaintiffs father, Akbar Joo, and an agreement to sell this land had been executed by him and that after his death on 25th Chet, 2005, the present plaintiffs had executed a fresh agreement to sell in favour of the defendant. But it was alleged that the transaction that had taken place between the parties was really a mortgage and as the defendant had obtained enough benefit from the land possession should be restored to them free from any encumbrances. It was also averred that on 26th Chet 2005, i.e., one day after the plaintiffs had executed the agreement to sell in favour of the defendant, the defendant had also executed a document in their favour in which he had made a promise that he would deliver back possession on getting back Rs. 140/ -to the plaintiffs. The defendant in his written statement admitted that possession of the land had been delivered to him by the father of the plaintiffs who had executed the agreement to sell the land specified in the plaint for a sum of Rs. 200/ - in his favour on 25th Chet 1999 and that after the death of the father of the plaintiffs they had executed a fresh agreement to sell on 25th Chet 2005. The defendant denied that the agreement to sell was really a mortgage. In para 6 of the written statement it was clearly stated that the defendant was entitled to specific performance of the agreement and he prayed that the suit of the plaintiffs should be dismissed and a decree for specific performance should be passed in his favour. In the course of the evidence it appeared that the father of the plaintiffs had also executed a fresh agreement to sell on 6th Baisakh 2002 and out of the sale price of Rs. 200/ - he had received Rs. 90/ - on 25th Chet 1999 and a further sum of Rs. 50/ - at the time of the execution of the second agreement to sell and the remaining Rs. 60/ - only had to be paid by the defendant at the time of the registration of the sale deed. In the third agreement to sell dated 25th Chet 2005 executed by the plaintiffs themselves it was admitted that Rs. 145/ - had been received by the plaintiffs and only Rs. 55/ - were to be paid by the defendant at the time of the registration of the deed. The trial Court found that the story of mortgage set up by the plaintiffs was entirely wrong and that they had failed to prove that the defendant had executed a document dated 26th Chet 2005 in their favour by which he had promised to deliver back possession to them on receipt of Rs. 140/ -. The trial Court dismissed the plaintiffs suit with costs and passed a decree for specific performance of the agreement dated 25th Chet 2005 in favour of the defendant against the plaintiffs. The trial Court further ordered that the decree would be executable only when the defendant paid the requisite court -fee and the remaining sum of Rs. 60/ - to the plaintiffs. This decree was passed on 29th Katik, 2010.and the defendant paid the court -fee on 10th Maghar 2010. On appeal the learned Additional District Judge agreed with the finding of the trial Court that the Document in question, namely, agreement dated 25th Chet 2005, was really an agreement to sell and not a mortgage. He, however, thought that the trial Court was not competent to pass a decree in favour of the defendant without the defendant bringing a separate suit for specific performance of the contract of sale. He also expressed the view that a set -off could be put in by the defendant only in a money suit. In the result he accepted the appeal and set aside the decree of the trial Court. He passed a decree for possession of the land in suit in favour of the plaintiffs against the defendant on the condition that the plaintiffs should deposit a sum of Rs. 140/ - before applying for the execution of the decree.

(2.) I have heard the learned counsel for the parties who have taken me through the facts of the case. It is clear that both the trial Court and the lower appellate Court have bungled in this case. A counter -claim had been set up in para 6 of the written statement. The lower appellate Court is right in so far as the word counter claim is not known to the Code of Civil Procedure and a statutory set -off is confined to money suits. But there is adequate authority for the view that a counter claim need not be an action of the same nature as the original action or even analogous thereto. A reference to Note 15, Chitaleys Code of Civil Procedure, Vol. 2, Edn. 5, under 0. 8, K. 6, would show that though there is no provision in the Code for making a counter claim, a Court has power to treat the counter -claim as the plaint in a cross suit and hear the two together. The only limitation is that the Court should be competent to hear the cross -suit. Saya Bya v. Maung Kyaw Shun, AIR 1924 Rang 346 A is a clear authority for the proposition that in a suit for recovery of possession the defendant can set up a counter -claim for specific performance of an agreement to sell and the counter -claim can be treated as the plaint in a cross suit and both the suits can be disposed of together. A reference to Lessoo & Sons v. Krishna Bahadur Nepali, AIR 1932 Bom 617 B would show the difference between a set -off and a counterclaim. As observed therein in one sense both are cross -actions but a set -off is also a ground of defence. On the other hand counter claim is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in an independant action. The main purpose of allowing, a defendant to set up a counter -claim is to avoid multiplicity of proceedings between the parties.

(3.) AFTER careful consideration of the facts of this case I consider that both justice and equity require that this suit for recovery of possession and the counter claim set up by the defendant for specific performance of agreement to sell should be disposed of together. But for this purpose the counter -claim contained in the written statement should have been properly stamped and the initial mistake was that of the defendant appellant but if the trial Court, wanted to treat the counter claim as plaint in the cross suit it should have got it properly stamped and given an opportunity to the plaintiffs to meet the counter claim of the defendant. As it is, I think the lower appellate Court is right in pointing out that the trial Court could, not have passed a decree for specific performance of contract to sell in favour of the defendant against the plaintiffs.