- (1.)This Civil Revision Petition is preferred against the order dated 5/06/1989 passed by the X Additional City Civil Judge, Bangalore in O.S. No.1877/ 1980 directing that the counter claim made by the first defendant on 27-8-1986 be excluded from the suit with a liberty to the first defendant to peruse the counter claim if she is willing by means of an independent suit.
(2.)O.S. No.1877/ 1980 is filed by the respondents for recovery of possession of the suit property bearing old No.19, later Nos. 23, 70 and 59 and the present No.52 situated at Poorna Venkata Rao Road, Bangalore City on the ground that the first defendant failed to perform her part of the agreement of sale dated 21-10-1965 and she is not entitled to remain in possession of the suit property as she was put in possession of the first floor pursuant to the agreement of sale and the ground floor is occupied by the first defendant unauthorisedly. The plaintiffs have also prayed for future mesne profits.
(3.)Sri Ramabhadriah Setty who was the original owner of the suit property agreed to sell the first floor of the suit property in favour of the first defendant. The plaintiffs claim the property under the Will dated 2-6-1969. The suit was filed on 15-10-1977. The second defendant is one of the daughters of Sri Ramabhadriah Setty but does not have any interest in the suit property and she remained ex parte throughout the proceedings. The written statement was filed by the first defendant on 10-7-1978. In the written statement the first defendant accepted the agreement pleaded by the plaintiffs and also further stated that she was ready and willing to perform her part of the agreement and therefore the court may be pleased to direct the legal representatives of Ramabhadriah Setty to execute the sale deed and register the same. Thereafter on 16-11-1978 issues were framed. The plaintiffs commenced adducing evidence on 16-3-1983 and closed their evidence on 5-6-1985. On 26-8-1985 the first defendant commenced her side and closed her side on 14-10-1985. Thereafter, when the suit was posted for arguments on 21-11-1985 an application was filed by the first defendant under 0.6 R.17, C.P.C. for amendment of the written statement. However, the Trial Court by its order dated 19-7-1986 treated that application as an application to set up counter claim and permitted the first defendant to raise it as a counter claim. That order was challenged before this Court in C.R.P. No.4503/ 1986 by the plaintiffs. This Court by the order dated 14/10/1988 allowed the Civil Revision Petition, set aside the order of the Trial Court and disposed of the revision petition with the following observations:
"It appears that now the respondents have already filed a counter claim and the petitioners have also filed a reply, and the learned counsel for the petitioners raised a question of maintainability of that counter claim. But it is unnecessary to consider the same in this proceeding, as it is open to the petitioner to raise such a contention in the course of the trial. The petition is allowed accordingly."
After the aforesaid order the respondents filed an application to exclude the counter claim from the suit. The trial Court has considered that application and has excluded the counter claim from the suit by the order under revision.