The respondent, as the plaintiff, has filed the suit, in respect of land and building situated at No.3 (Old No.5), Cunningham Road (also called Sampangi Ramaswamy Street), Bengaluru, to pass decree against the petitioner / defendant. Written Statement and counterclaim, under Order VIII Rule 6A of the Civil Procedure Code, 1908 was filed by the petitioner. The respondent filed application under Order VIII Rule 9 read with S.151 of CPC for grant of leave to file rejoinder statement to the written statement and counterclaim. The plaintiff filed I.A.3, under Order VII Rule 11(b) and (c) read with S.151 of CPC, to direct the defendant i.e., plaintiff in the counterclaim, to properly value the counterclaim and pay sufficient court fee on the counterclaim. Another I.A. was filed, under Order VIII Rule 1 read with S.151 of CPC, to permit the plaintiff i.e., the defendant in the counterclaim, to file written statement and to receive the same on record by condoning the delay.

2. The Trial Judge, by an order dated 26.07.2014, having disposed of I.A.3, holding the counterclaim of the defendant ‘as not maintainable’, this petition was filed to set aside the said order.

3. The Trial Judge, as per the impugned order, has held the counterclaim as not maintainable, mainly on the ground that:

(a) The defendant cannot split the cause of action arising out of the alleged agreement in respect of the entire property and set up counterclaim in respect of a portion of the property and set up counterclaim in respect of a portion of the property allotted to the share of the plaintiff as described in the schedule B of the plaint, by observing that the cause of action for the suit having arisen out of a lease agreement dated 03.03.1979, counterclaim based on another cause of action i.e., with reference to the agreement of sale dated 20.02.1980 is not maintainable.

(b) The counterclaim only in respect of the suit schedule ‘B’ property as against the plaintiff, without impleading other holders of the suit schedule A property is not maintainable.

(c) Counterclaim is bad for non joinder of necessary parties and non inclusion of the entire property under the alleged agreement of sale.

(d) The defendant should file separate suit in respect of the entire suit schedule ‘A’ property i.e., for specific performance of the alleged agreement against all the owners of the schedule ‘A’ property.

4. Sri P.D. Surana, learned advocate, contended that the Trial Judge has fallen in grave error in holding the counterclaim ‘as not maintainable’, that too while deciding I.A.3, under Order VII Rule 11(b) and (c) read with S.151 of CPC, filed by the original plaintiff, to direct the defendant to correctly value the counterclaim and pay sufficient court fee. He submitted that the impugned order suffers from jurisdictional error and calls for interference.

5. Sri Udaya Holla, learned Senior Advocate, on the other hand, contended that as adjudication of the counterclaim is likely to prolong the trial of the suit, the Trial Judge is justified in passing the impugned order. In support of the submission reliance was placed on the decision in ISKCON (MUMBAI) Vs. ISKCON (BENGALURU), 2007 (5) KLJ 440.

6. Ejectment decree and consequential reliefs has been sought in the suit filed in respect of the plaint schedule ‘B’ property, which forms a portion of the plaint schedule ‘A’ property. Plaintiff and the other legal heirs of late L.H. Ishwara Murthy have partitioned amongst themselves the schedule ‘A’ property, as per the final decree for partition dated 21.09.2007. Under the said partition, portion(s) of schedule ‘A’ property having fallen to the share of respective plaintiff(s), relief in respect of schedule ‘B’ property has been sought by the institution of separate suits, which are pending on the file of one and the same Court. The defendant is common in all the suits. In the counterclaim(s) filed, relief in respect of the plaint schedule ‘A’ property has been sought by the defe