Bombay High Court
Ramji Narayan Ghuge vs Ratan Waghu Bhujbal on 18 November, 1988
Equivalent citations: (1988)90BOMLR686
JUDGMENT G.H. Guttal, J.
1. The question for consideration is whether, upon dismissal of a suit for specific performance of contract of sale of immovable property instituted by the plaintiff in possession, a decree for possession against the plaintiff could be passed, in the absence of a counter claim seeking such relief.
2. On April 21, 1979, the defendant Nos. 1 and 2, sons of the owner, Waghu, who are the respondents Nos. 1 and 2, respectively, to this appeal, agreed to sell to the plaintiff two agricultural lands Gat Nos. 119 and 120 situated at village Manori in District Nasik admeasuring, respectively, 27 gunthas and 6 acres and 13 gunthas, for a total consideration of Rs. 15,000/-. They had received a total amount of Rs. 12,299/- as earnest money. The defendants Nos. 3 and 4 who are the daughters of Kalu the brother of Waghu and who have a share in the property, were not parties to this agreement of sale. At the trial, the defendant No. 1, who was a party to the agreement of sale did not rile written statement. The defendant No. 4, too, did not file written statement. It is the defendants Nos. 2 and 3 who filed written statement. The Suit No. 233 of 1982 for specific performance of the aforesaid agreement was dismissed by the Civil Judge, Junior Division, Dindori. The defendants Nos. 1 and 4, however, appeared in person in the Civil Appeal No. 474 of 1982 before the District Court. None of the defendants filed a counter-claim claiming possession of the property. Admittedly, the plaintiff is in possession of the property pursuant to the agreement of sale.
3. The learned Civil Judge, Jr. Dn. Dindori, by his judgment and decree dated October 30, in Regular Civil Suit No. 233 of 1982, held that the agreement of sale on which the suit was based was not proved and, while dismissing the suit, directed the plaintiff to deliver possession to the defendants. The learned Assistant Judge, Nasik, who heard the Appeal No. 474 of 1982 against the aforementioned decree held, by his judgment, that the agreement of sale represented a money lending transaction. According to him, even if the agreement was assumed to be an agreement of sale, the plaintiff was not ready and willing, to perform his part of the contract. Consequently, he confirmed the dismissal of the suit as also the decree directing delivery of possession to the defendants. The plaintiff appeals to this Court.
4. The error in the decree appealed from will be clear form a careful look at certain provisions of the Code of Civil Procedure. Rule 13 of Order VIII of the Code of Civil Procedure enables a defendant to set up, by way of counterclaim, against the claims of the plaintiff "any right or claim in respect of a cause of action accruing to the defendant either before or after the filing of the suit". Such counter-claim shall have the same effect as a cross suit Order VIII Rule 13 of the Code of Civil Procedure. The Court is empowered to pronounce a final judgment in the same suit both on the original suit and on the counter-claim Order VIII Rule 13 of the Code of Civil Procedure. The defendant seeking to rely upon any ground in support of his right of counter-claim shall, in his written-statement, state specifically that he does so by way of a counter-claim Order VIII Rule 14 of the Code of Civil Procedure. The plaintiff who would be the defendant in the counter-claim is entitled to file a written-statement in reply to the counter-claim Order VIII Rule 18 of Code of Civil Procedure. Even if the suit is stayed, discontinued or disposed off, the counter-claim may be continued and proceeded with as if it were a suit Order V1II Rule 20 of Code of Civil Procedure. If there is no reply to the counter-claim by the plaintiff, the counter-claim may be set down for judgment and where a counterclaim is established, judgment and decree in favour of the person making the claim may be made Order VIII Rule 21 of Code of Procedure.
5. It would, thus, be seen that the provision for making a counter-claim and its trial is not an empty formality but is intended to enable the defendant who has a cause of action against the plaintiff to establish such cause without filing a separate suit; for, counter-claim is, in reality, a suit by the defendant. If the defendant in a suit for specific performance of the contract of sale of immovable property is not in possession, he may seek possession by establishing his counter-claim. He cannot be permitted to seek a decree for possession without making a claim for such possession. The defendants' right to make a counter-claim and the plaintiff's right to defend it are founded on the fundamental principle that no claim shall be granted without a fair trial. A decree for possession in favour of a defendant who has not made a counter-claim is contrary to this fundamental rule. The plaintiff may have defences to the counterclaim and if he succeeds, the counter-claim may be dismissed.
6. In Annappa Baburao Suryawanshi v. Manohax Gopal Bhosale (1980) F.A. No. 988 of 1974 (Bom.) Procedure a Division Bench of this Court answered this question:-
No decree for possession of the land could have been passed in favour of the defendant in plaintiff's suit. The trial Judge has not explained how such a decree without a counter-claim in favour of the defendant could have been passed. The said decree h obviously liable to be set aside.
7. Having regard to the provisions of the Code of Civil Procedure, the decree for possession made against the plaintiff is erroneous.
8. Shri Sali, learned Counsel for the defendants relied upon the judgment of the Supreme Court in the case of Babulal v. Mis. Hazari Lal Kishori Lal where a successful plaintiff was unable to get possession of the property and the Supreme Court, in execution, permitted amendment of the plaint and consequential decree for possession in accordance with Section 20 of the Specific Relief Act. It has not been held that a decree for possession could be made against the plaintiff on facts similar to those obtaining in this case. The judgment has no application to the facts of this case.
9. I, therefore, partly allow the appeal and set aside that part of the decree which directs that the plaintiff shall put the defendants in possession of the suit property. Rest of the decree is confirmed. The plaintiff will get costs from the defendants.
10. Civil Application No. 981 of 1988 is misconceived and is dismissed with costs.