IMPORTANT POINTS
(1) Counter claim though can be based on different cause of action than that are put forth in suit, it should be one incidental or connected with that cause of action.
(2) Counter claim has necessarily to be directed against plaintiff and cannot be directed against co-defendant.

JUDGMENT :

K. VINOD CHANDRAN, J.

1. Leave granted.

2. The appellant who is the plaintiff in a suit, is aggrieved with the order of the High Court, which affirmed the order of the Trial Court admitting a counter claim by the defendant Nos.2 and 3, who were subsequently impleaded, on their application. The counter claim was against the first defendant; against whom the plaintiff had sought a specific performance of the very same land; subject matter of the suit.

3. The High Court dismissed the application filed under Article 227 on the ground of avoiding multiplicity of litigation, reasoning that the entire issue can be decided in the suit as to whether the counter claim is maintainable or not.

4. Heard the learned counsel for the appellant and the respondents herein. While learned counsel for the appellant contends that there can be no counter claim against the co- defendant in a suit filed by him, the defendants who raised the counter claim pleaded that they may be left liberty to agitate their cause in appropriate proceedings. Learned counsel for the appellant specifically relied on the decisions in Rohit Singh & Ors. v. State of Bihar, (2006) 12 SCC 734 and Rajul Mano Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel & Anr., (2025) 10 SCR 152.

5. On the brief facts, it is to be noticed that the plaintiff filed a suit for specific performance on the contention that defendant No.1, who was the sole defendant had entered into an oral agreement on 02.12.2002 to sell 0.93 acres of land, more fully described in the plaint. The first defendant, was the sole defendant impleaded in the plaint filed. The entire consideration agreed upon was paid on 03.12.2002 by way of three demand drafts, upon which a receipt was issued in favour of the plaintiff, promising transfer of the said land in favour of the plaintiff, which was witnessed by three defendants, claimed the plaintiff. The plaintiff also asserted that he was put in possession of the property on which he had built a boundary wall.

6. The original sole defendant filed a written statement contending that two others (defendant Nos.2 and 3, subsequently impleaded) were the persons in possession of part of the suit property and hence the suit is bad for non-joinder of the necessary parties. It was claimed that on 01.12.2002, a portion of the very same land, 50 decimals, was agreed to be transferred to the 2nd and 3rd defendants, the consideration of which, Rs.2,95,000/- was required to be paid on 03.12.2002. However, it is also admitted that in the meanwhile, the 1st defendant due to his financial need sold 43 decimals of land to the father of the plaintiff for an amount of Rs.2,55,000/-. There is also an averment that the plaintiff made payment of Rs.2,55,000/- by demand drafts and 2nd and 3rd defendants made payment of Rs.2,95,000/- by deposit in a bank account.

7. As of now, the question of non-joinder of necessary parties does not arise since the 2nd and 3rd defendants themselves filed an application for impleadment, which was allowed, upon which the plaintiff had taken up a challenge before the High Court, rejected as per Annexure P11. However, the written statement filed by 2nd and 3rd defendants assert that their agreement was to purchase the entire land for Rs.5,50,000/- out of which they have paid Rs.2,95,000/-. They also raised a counter claim against 1st defendant that they are entitled to be transferred the entire land which was allowed to be taken up by the Trial Court and challenged unsuccessfully before the High Court; impugned herein.

8. Admittedly, even if the allegation of an agreement of sale with 2nd and 3rd defendants is accepted, there is no contention that the amount agreed upon was paid to the 1st defendant or that they were always ready and willing to pay the balance sale consideration. It is also pertinent that in the written statement filed, the 2nd and 3rd defendants concede that 43 decimals of land was purchased by plaintiff’s father and their agreemen