Rahul Manoj Shah @ Rajeshwari Rasiklal Sheth vs. Kiranbhai Shakrabhai Patel & Anr. (SC)

Code of Civil Procedure, 1908–Order 8, Rule 6A–Counter-claim–Permissibility–Plaintiff filed the suit against the defendant no. 1 asserting that she was not entitled to transfer or deal with the property without his consent–Further, he sought to declare the agreement of sale executed in favour of defenadant no. 2, null and void–Defendant no. 1 passed away during the pendency of suit and, thereafter, Najir of the Court was substituted as defendant no. 1 and the proposed purchaser by agreement of sale was impleaded as defendant no. 2–Defendant no. 2 filed the application seeking the amendment in the written statement and for filing the counter-claim–High Court allowed the application and permitted him to file the counter-claim–He sought the relief of specific performance of the agreement of sale, executed by the deceased-original defendant no. 1–Such relief is not directed against the appellant-plaintiff but only against the defendant no. 1, therefore, same can not be set up by way of counter-claim–Further, his claim of partition of suit property is also not acceptable because the defendant must first establish a right of claim over the property–Furthermore, the counter-claim was filed after two years of framing the issues–The defenadant no. 2 did nothing till the death of original defendant no. 1–Impugned judgment passed by the High Court is liable to be set aside.