The Trial Court has the discretion to add necessary parties at any stage of the suit to enable complete adjudication, and the merits and limitation of counterclaims are to be determined during the trial.

ABHILASHA KUMARI, J.

1. Rule. Mr.Dhaval D. Vyas, learned advocate waives service of notice of Rule on behalf of respondents Nos.1 and 2. Respondent No.3 has been served, but has not chosen to put in an appearance before the Court. Hence, it is not necessary to issue notice of Rule to the said respondent. On the facts and in the circumstances and of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided.

2. By preferring present petition under Article227 of the Constitution of India, the petitioners have challenged the order dated 21.09.2012 passed by the learned Additional Senior Civil Judge, BhujKutch below the application at Exhibit86, in Regular Civil Suit No.162/1996, preferred by the respondents, whereby the said application for joining party respondents has been allowed.

3. Briefly stated, the relevant facts are that petitioner No.1 has filed Regular Civil Suit No.162/1996 for declaration and permanent injunction in connection with the land in question, on 24.05.1996. The respondents filed their written statement and in the said written statement, they made a counterclaim regarding cancellation of two registered Sale Deeds dated 29.09.1976. In the said suit, respondent No.2 made the application at Exhibit86 for joining three heirs of deceased Jivubha Tanubha Jadejathe vendor of the land in question. This application stands allowed by the impugned order. Aggrieved thereby, the petitioners have approached this Court by way of the present petition.

4. Mr.Nalin K. Thakker, learned advocate for the petitioners has made the following submissions :

(a) No prayer has been made against the parties that have been joined. Hence, they are not proper parties.

(b) No application has been made by the parties to be joined in the suit.

(c) There is no consent of the parties to join them in the capacity of the heirs of the person who sold the property in 1976. Before passing the impugned order, no notice was issued by the Trial Court to the said heirs.

(d) There is nothing on record to show that the heirs are interested in being joined in the pending suit.

(e) The sale of the property, which dates back to the year 1976, has been executed by way of registered Sale Deed. Hence, if aggrieved, the heirs may challenge it by a separate suit.

(f) The desire of the respondents to join the heirs of the seller in support of their counterclaim is to gain support for their counterclaim, which is not maintainable in law, as the respondents are challenging a Sale Deed of 1976 therein.

(g) The counterclaim is not maintainable because it is essentially a cross suit. A cross suit is required to be filed with all the trappings of a suit. The counterclaim filed by the respondents does not fulfil this requirement, hence, it is not maintainable. The respondents must set out all the material facts, as if they are the plaintiffs. A counterclaim can be raised only within the period of limitation, that is, three years. In the present case, in the counterclaim, the challenge is to a registered Sale Deed dated 29.09.1976, after twenty years. It is, therefore, clearly barred by limitation. While granting the application of the respondents, which has been made only on the basis of the counterclaim, the Trial Court has erred in holding that the legal heirs of the vendor ought to be joined as party defendants on the ground that the registered Sale Deed of 1976 is under challenge. Even though the suit has been filed in the year 1996, if the legal heirs of the vendor are aggrieved, they are free to file a separate suit, but they cannot be permitted to enter into the suit instituted by the petitioners, as they are neither proper nor necessary parties and no prayers have been made against them.

(h) The impugned order is erroneous, as there is no party on record against whom the heirs are claiming in the counterclaim. No issue regarding the counterclaim has been framed in the suit of the petitioner