- (1.) This application under Article 227 of the Constitution, at the instance of the petitioners (plaintiffs in Title Suit No. 550 of 2003), is directed against order no. 202 dated February 14, 2011 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta. By the said order, a petition dated November 29, 2010 filed by the petitioners under Order 8 Rule 6C, Civil Procedure Code read with section 151 thereof seeking exclusion of the counter-claim of the defendant in the suit, the opposite party herein, was rejected. The genesis of the dispute between the parties, when traced, reveals the following: (a) The petitioners instituted the suit for declaration and permanent injunction (hereafter the former suit), wherein a decree was prayed for to declare that they have unfettered right of ownership of the suit property, described in schedule A to the plaint together with right of free ingress and egress as well as peaceful enjoyment thereof. A decree for permanent injunction was also claimed restraining the opposite party from committing acts of trespass over the suit property and/or from putting any person in possession thereof. (b) In connection therewith, the petitioners filed an application under Order 39 Rule 1 & 2 of the Code. By an order dated April 25, 2003, the trial Court passed ad-interim order of injunction restraining the opposite party from disturbing their peaceful possession of the suit property and from creating any embargo in their ingress thereto and egress therefrom. (c) Almost a year later, on or about March 20, 2004, the opposite party, as plaintiff, instituted Title Suit No. 379 of 2004 in the City Civil Court at Calcutta (hereafter the latter suit) against seven defendants, of which the petitioners were the third and the fourth defendants. It was a suit for declaration and permanent injunction. The opposite party in his suit claimed the following relief: (i) a decree for declaration that the legal charge of dated 22nd day of June, 1998 ranks in priority to the deed of execution for sale of the said premises by Chhaya Das and Shila Dey to Mriganka Gupta and Kajendra Lal Gupta; (ii) a decree for declaration that the said transaction is a sham transaction as because all the successors in interest of Pritilata Bhur (since deceased) have not been included; (iii) a decree of declaration that the said Deed is tinged with the spirit of malafide and wantonness hence it is bad in the eye of law; (iv) a decree for declaration that the defendant Nos. 5 and 6 are liable to perform and observe the covenant of Pritilata Bhur contained in the said agreement so long as Susanta Mondal continues in occupation of the said premises; (v) a decree of perpetual injunction restraining the defendants No. 3, 4 from alienating parties with... (illegible).... mortgaging or any way encumbering the aforesaid suit property; (vi) if necessary an administrator or receiver further or other relief as the learned Court may seem fit and proper. (d) It is noted that the suit properties in both the suits are the same, viz. premises no. 153/2C, Acharya Prafulla Chandra Road, P.S. Battala along with land measuring more or less 8 cottahs, 1 chittak and 24 sq.ft. (e) The order of injunction passed on April 24, 2003, however, was vacated on October 18, 2006 by the learned Trial Judge. Feeling aggrieved thereby, the petitioners filed an appeal before this Court. On September 10, 2007, a Division Bench of this Court disposed of the appeal along with the application for stay. It was noted that during the subsistence of the interim order of injunction the petitioners had been dispossessed and bearing in mind the same, it was observed that the case should not be reopened and since the suit was pending, both parties should maintain the present position. The Trial Court was directed to expedite its decision on the suit without being influenced by the finding of possession and keeping its mind open. (f) Sometime later, however, the latter suit instituted by the opposite party was dismissed for default on October 29, 2009. (g) After disposal of the appeal, as aforesaid, the petitioners filed an application for amendment of the plaint in the former suit. The opposite party filed written objection thereto. By an order dated December 17, 2009, the application for amendment was allowed on imposition of cost of Rs. 500/-. (h) Challenging the order allowing amendment of plaint, the opposite party filed a revisional application before this Court. A learned Judge, by order dated March 30, 2010, rejected the application but granted leave to the opposite party to file additional written statement within four weeks from date of service of copy of the amended plaint. Availing of the liberty granted by order dated March 30, 2010, the opposite party filed additional written, statement and set up a counter-claim. It was prayed by the opposite party as follows: i) for a decree of declaration that this Defendant is entitled to protect his possession over the suit property which this defendant obtained from Pritylata Bhur (since deceased) in part performance of the contract. ii) a decree of declaration that the Sale Deed between Rajendra Lal Gupta, Mriganka Gupta AND Chayya Das and Shila Dey is not proper and valid in the eye of law. iii) a decree of perpetual injunction according to the merit of the counter -claim restraining the plaintiffs and their agents from disturbing the peaceful possession of Susanta Mondal from the suit property. (i) Factually, the opposite party pleaded that there was an agreement between Pritilata Bhur (since deceased) and himself for sale of the suit property and that he had obtained possession thereof in pursuance of part performance of the contract. This led the petitioners to file the application, which has been rejected by the impugned order.
(2.) Mr. Das, learned senior advocate for the petitioners contended that the counter-claim set up by the opposite party is barred not only in view of Order 9 Rules 8 & 9 of the Code but also by the laws of limitation. It was next contended that although the opposite party relied on the doctrine of part performance, his role does not satisfy the conditions of section 53A, Transfer of Property Act (hereafter the TP Act). According to him, the agreement on which the opposite party relies, if at all executed by the aforesaid deceased, is an unregistered instrument and not adequately stamped, and therefore, no credence ought to be given to it. Referring to the single Bench decision Dr. Swapnadin Lahiri vs. Tridib Das Roy,1999 2 CalHN 369, it was contended that the instrument on the basis of which the opposite party seeks to base his claim not being a legal and valid instrument, he is not entitled to any relief in his counter-claim. For the same effect, he relied on the decision G.H.C. Ariff vs. Jadunath Majumdar Bahadur, 1931 AIR(PC) 79 and argued that registration is necessary. Relying on the decision Oriental Ceramic Products vs. Calcutta Municipal Corporation, 2000 AIR(Cal) 17, it was contended that if from the statements made in the written statement, wherein the counter-claim is set up, it appears that it is barred by the law of limitation, the counter-claim would be liable to rejection. The Bench decision of the Gujarat High Court Gujarat Electricity Board vs. Saurashtra Chemicals, Porbandar, 2004 AIR(Guj) 83was referred to in support of the contention that since no attempt has been made by the opposite party for restoration of the latter suit, a fresh suit on the self-same cause of action would be barred under Order 9 Rule 9 and having regard to the legal position that a counter-claim is to be treated as a cross suit, the same would not also be maintainable in view of dismissal of the latter suit for default. The decision Ramesh Chand Ardawatiya vs. Anil Panjwani, 2003 7 SCC 350was placed wherein a malafide attempt to reopen proceedings by filing counter-claim was deprecated. Finally, it was contended that Order 23 Rule 1 of the Code was also a bar to the filing of the counter-claim. Once a suit is withdrawn, he contended, a second suit on the self-same cause of action would not lie unless the Court while permitting withdrawal grants leave. In this connection the decision Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior & Ors., 1987 AIR(SC) 88 was placed. According to him, allowing the latter suit to be dismissed is akin to withdrawal and, in the absence of any leave to file a fresh suit, the counterclaim is not maintainable. He, accordingly, prayed for an order to set aside the impugned order and to direct the trial Court to proceed, in accordance with law, excluding the counter-claim.
(3.) Mr. Chakraborty, learned Advocate for the opposite party contended that with the application for amendment of plaint being allowed by the Trial Court, the structure of the suit was changed which necessitated the opposite party to set up a counter-claim. According to him, the latter suit (filed by the opposite party) not having been decided on merits, question of the counterclaim being barred by res judicata does not and cannot arise. It was also submitted by him that at the time of dismissal of the latter suit, the present petitioners were not present and they had not filed their written statement even and, therefore, question of the counter-claim being barred by Order 9 Rule 9 of the Code does not and cannot arise. In so far as the question of the counter-claim being barred by limitation is concerned, it was submitted that the question of limitation is a mixed question of fact and law and, therefore, the issue ought to be allowed to be decided by the trial Court after evidence is adduced by the parties. Finally, it was contended that the learned Judge was right in his conclusion that the petitioners had set up no case for exclusion of the counter-claim and, thus, the order impugned did not merit interference. In support of his submissions, Mr. Chakraborty relied on the decisions Gurbachan Singh vs. Bhag Singh & Ors., 1996 AIR(SC) 1087 wherein it was ruled that in a suit for injunction, a counter-claim for possession also could be entertained by operation of Order 8 Rule 6A of the Code and Atmaram Gangadhar Deshwali & Anr. vs. Noormohammad & Ors., 2007 AIR(MP) 81for the proposition that a counter-claim cannot be dismissed at the reshold on the ground of limitation without framing of issues or recording of evidence.;