SUSHILA SAHU Vs. SMT. SUDHA YADAV

JUDGEMENT

(1.) The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 25/02/2017 passed by 2nd Additional District Judge, Seoni in Civil Suit No.3-A/2013.

(2.) Brief facts of the case are that the petitioner/plaintiff has filed a civil suit for specific performance of agreement to sale. As per the plaint allegations Smt. Gomti Bai was owner of suit land and she has constructed a house on it. Thereafter by a gift deed dated 09/03/1951, part of the said house was gifted by her to her daughter Sunder Bai. Sunder Bai died issueless and the suit property devolved on her mother and brother Bhaiyalal. Bhaiyalal partitioned his properties amongst his four sons and thereafter by registered Will dated 01/11/1989, the suit property was devolved on Swamideen. It was further alleged that Swamideen started collecting rent from one Shri Ram Namdeo and husband of plaintiff. On 15/10/2000 Swamideen agreed to sale suit property to plaintiff for a consideration of Rs.3,00,000/- and further agreed that sale deed be executed by 15/10/2000. Swamideen died on 21/02/2001 and his legal heirs i.e. defendant Nos. 1 to 3 acknowledged the sale by Swamideen and executed sale agreement dated 10/09/2003. Since, despite request made by plaintiff, the sale deed was not executed, she therefore, filed a civil suit for specific performance. The defendant No.1 filed written statement and controverted the plaint allegations. She alleged that Gomti Bai gifted the property to Sunder Bai and her name was mutated. It was further alleged that Sunder Bai did not died issueless but prior to her death, she has executed a Will in favour of the defendant No. 4. It was further alleged that the properties were managed by defendant No.4 who used to collect rent from husband of plaintiff and other tenants. The maintainability of the civil suit on the ground of limitation was also challenged. The legal heirs of defendant No.4 filed their written statement and alleged that Gomti Bai was the owner of the suit property and after her death it was devolved on Swamideen. A Civil suit was filed on 22/02/2010, legal heirs of defendant No.4 filed written statement on 16/11/2010 and issues were framed on 20/12/2010. Thereafter, plaintiff filed affidavit on 09/01/2015. After commencement of trial, the legal heirs of defendant No.4 filed a counter claim on 09/01/2015 alleging that plaintiff as tenant on monthly rent of Rs.600/- per month. Eviction of the suit property was sought on the ground of arrears of rent and denial of title. In the counter claim cause of action was shown as 22/10/2010 and 11/10/2010. The petitioner filed an application challenging the maintainability of counter claim contending that pursuant to commencement of trial counter claim is not maintainable. It was further contended that counter claim for eviction is not maintainable in suit for specific performance of contract. Learned trial Court vide order dated 25/02/2017 has dismissed the said application. Being aggrieved by that order, the petitioner has filed the present petition.

(3.) Learned counsel appearing on behalf of the petitioner argues that the order dated 25/02/2017 passed by the trial Court is illegal and void. He submits that the issues were already framed on 20/12/2010 and thereafter, plaintiff has also filed affidavits. Thus, since the trial has already commenced, therefore, at this stage, the Court should not have allowed the defendant No.4 to file counter claim. He submits that subsequent pleading will prolonged the trial. He further submits that in the present case, the plaintiff has filed a civil suit for specific performance of contract against the defendants. Legal heirs of defendant No.4 filed a counter claim and claimed eviction of plaintiff on the ground envisaged under the provision of Madhya Pradesh Accommodation Control Act. He further submits that it is settled law that in suit for eviction question of title cannot be gone into like a regular civil suit. He further submits that on perusal of counter claim it shows that the cause of action arose on 20/10/2010 and 11/10/2010. The legal notice for counter claim was alleged to be sent on 07/10/2010 and there is nothing on record to show cause of action arose on 20/10/2010 or 11/10/2010. For the said purpose, learned counsel for the petitioner relied on a judgement passed by this Court in the case of Sushila Devi vs. Khalil Ahmed, 2011(3) MPLJ, 526.