THE HONOURABLE SRI JUSTICE N. TUKARAMJI CIVIL REVISION PETITION No.545 OF 2024

ORDER:

Heard Mr. V.Rohit, learned Senior Counsel. Inspite of due notice, the respondents chose to remained silent.

2. This revision petition has been field assailing the order dated 05.07.2023 in interlocutory application vide I.A.No.291 of 2021 in O.S.No.127 of 2017 on the file of the learned Principal Junior Civil Judge, Nizamabad.

3. The revision petitioner is defendant in the suit. The respondent herein had filed a suit seeking relief of declaration of title over the suit scheduled property and to direct the defendants to hand over the vacant physical possession of the suit scheduled property to the plaintiff and also for cancellation of the sale deed bearing Document No.590/2003 dated

23.01.2003.

4. The case of the revision petitioner is that he purchased the suit schedule property under registered sale deed vide document No.590/2003 dated 23.01.2003 from the respondent/plaintiff and his father was the attesting witness. Thereafter, the revision petitioner was in possession and enjoyment of the property and his name was also mutated in the revenue records. In such position, the respondent/plaintiff by pleading that he found the link documents while cleaning the house and the suit schedule property got conveyed by his father when he was 13 years old, thus disputing his age on the date of sale deed, filed the suit.

5. As per the counsel, the revision petitioner in written statement contested that though the sale deed was executed, as it was informed that the link documents were misplaced, he could not receive them at relevant time. Now, as the respondent is having possession of the link documents, though came up with concocted story to cause unlawful loss, he filed the impugned interlocutory application by way of counter claim seeking return of link documents to the sale deed which was executed in his favour. However, the trial Court by observing that application was filed at belated stage with irrelevant provision and the amendment can be allowed only to the extent of questions in controversy and to file counter claim, the defendant has to seek permission from the Court, dismissed the application. Thus, the revision.

6. Learned Senior Counsel appearing for revision petitioner would submit that mere improper mention of provision of law does not absolve the revision petitioner to seek the counter claim and though there was delay and issues are framed, as examination of witnesses/trial is yet to be commenced. Further, the counter claim will not change either cause of action or introduced new factor but it will determine all the issues between the parties, holistically. Further, the Court fees has already been paid for the counter claim. As the trial proceedings are at initial stage, the counter claim and amendment of written statement will not cause prejudice to the interest to the respondent/plaintiff. Hence, the trial Court ought to have allowed the petition.

7. I have carefully considered the submissions of the learned counsel for the petitioner.

8. At the outset, it is trite that questioning wrong statutory provision will not deprive the petitioner from the relief sought for or bars the Court in considering the petition and granting the entitled remedy. Therefore, such objections cannot be sustained. 9. Indisputably, the application has been filed at the stage of plaintiff evidence which is making out that the examination of witnesses has yet to be commenced. Thus, the suit proceedings are not in advanced state.

10. The only aspect that remains for consideration is the delay in filing the counter claim.

11. There is nothing to show that the delay was advised or with malafidees. In such position, as the suit proceedings are at initial stages and to determine the issues between the parties in entirety would meet the ends of justice. Further, receiving/entertaining counter claim would not create any right in favour of any party or cause any prejudice to the