THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION No.1778 of 2023

ORDER

The present Civil Revision Petition is filed by the petitioner/defendant No.14 aggrieved by the order dated 27.01.2023 in I.A.No.1509 of 2022 in O.S.No.49 of 2014 passed by the Court of learned XII Additional Chief Judge, City Civil Court, Secunderabad (for short “the trial Court”), whereunder the application filed by defendant No.8 seeking to receive the counter claim was allowed.

2. For the sake of convenience, the parties, hereinafter will be referred as per their array before the trial Court.

3. O.S.No.49 of 2014 is filed under Section 26 Order VII Rule 1 of the Civil Procedure Code (for short ‘CPC’) seeking specific performance of the agreement of sale dated 12.04.2004. In the said suit, defendant No.8 filed I.A.No.1509 of 2022 under Order VIII Rule 9 read with Section 151 of CPC to receive the counter claim. In the said application, it is stated by defendant No.8 that he filed written statement on 02.08.2022 and the said suit is filed for specific performance by forging the signature of late Mohd. Saleh Jamal. It is further stated that defendant No.14 is claiming to be in possession of the suit schedule property by way of a permissive possessor of defendant No.2, who was a tenant of late Mohd.Saleh Jamal, in respect of suit schedule property. It is also stated that Mohd. Saleh Jamal, who is father of the defendant No.8, was the original owner and possessor of the suit schedule property by virtue of the sale deed, dated 27.05.1986 and defendant No.1, in order to cause loss and to harass Late Mohd. Saleh Jamal, put defendant No.14 as a permissive possessor in the suit schedule property and the counter claim has been filed by defendant No.8 as one of the legal heirs of late Mohd.Saleh Jamal.

4. The plaintiff and defendant No.14 filed counter affidavits in I.A.No.1509 of 2022 denying the averments made by defendant No.8 stating that the said counter claim is not maintainable and only to avoid the decree, the said counter claim has been filed.

5. Having regard to the rival submissions made and after hearing both sides, the trial Court has observed that the suit is coming for the evidence of PW1 and no prejudice will be caused to the respondents if the said application is allowed and counter claim is received on file and accordingly allowed I.A.No.1509 of 2022 and the said counter claim is received on record. Against the same, the present Civil Revision Petition is filed.

6. Heard Sri M.R.S.Srinivas, learned counsel for petitioner and Sri Sharad Singh, learned counsel appearing for respondents.

7. Learned counsel for the petitioner contended that the trial Court failed to understand the scope and significance of Order VIII Rule 9 and Order VIII Rule 6A and Section 151 of CPC and that defendant No.8 is one of the shareholders and he has no right to prosecute on behalf of other sharers and the question of seeking eviction by filing counter-claim would not arise as there is no whisper in his written statement, as such, counter claim is not maintainable. Learned counsel further submitted that the trial Court failed to see that if a counter claim is maintainable only against the plaintiff and the deceased defendant No.1 and defendant No.14 has no nexus with the claim of plaintiff and the question of maintaining counter claim without there being any nexus between the plaintiff on one side and the revision petitioner and others on other side thus, there is no common cause of action to maintain the present counter claim. It is also submitted that the trial Court failed to see that the agreement of sale executed by Saleh Jamaal in favour of deceased defendant No.1 has already been established by virtue of the judgment and decree in O.S.No.1048 of 1990 and the agreement holder can validly resist the delivery of possession and respondent No.1/defendant No.8 is co-defendant, along with the revision petitioner herein. Therefore, the counter claim is not maintain