LexRAJUL MANOJ SHAH ALIAS RAJESHWARI RASIKLAL SHETH versus KIRANBHAI SHAKRABHAI PATEL & ANR.
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[2025] 10 S.C.R. 152 : 2025 INSC 1109 Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel & Anr. (Civil Appeal No. 11781 of 2025) 12 September 2025 [Pamidighantam Sri Narasimha* and Joymalya Bagchi, JJ.] Issue for Consideration Whether the High Court was correct in reversing the order passed by the Civil Court dismissing the interlocutory application filed by respondent no.1 for amending the written statement and for filing a counter claim in a suit for declaration and injunction filed by the appellant; and legality of institution of a counter claim against a co-defendant. Headnotes Code of Civil Procedure, 1908 – Order VIII, Rule 6A – Counter- claim by defendant – Suit for declaration filed by the appellant against her sister-in-law-defendant no.1 seeking declaration that she has no right to transfer or deal with the suit property without her consent and to declare that the agreement to sell in favour of respondent No.1, as null and void – Death of defendant no.1 – Thereafter, Nazir of the Civil Court- respondent No.2 was substituted and appointed as defendant no.1 – On 26.07.2021, respondent no.1 filed application seeking amendment of the written statement to file counter claim thereby praying for direction to respondent No.2 to accept remaining consideration and execute sale deed in respect of the said agreement to sell executed by defendant no.1 and to partition the suit property – Trial court dismissed the application by holding that a counter claim not maintainable against the co-defendant – However, the High Court allowed the application of the respondent no.1 and permitted him to file counter claim – Correctness: Held: High Court erred in reversing the judgment of the trial court by permitting defendant no.2 to file a counter-claim against defendant * Author [2025] 10 S.C.R. 153 Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel & Anr. no.1 and not against the appellant – Relief of specific performance as sought to be raised by defendant no.2 cannot be set up by way of a counter-claim since the same is not directed against the appellant, but is instead directed solely against the co-defendant – Defendant no.2 disentitled to raise prayer of specific performance by way of counter-claim – Further, defendant no.2 however submits that he has not only claimed the relief of specific performance, but has also sought partition of suit property to separate the share he is entitled to under the agreement – Defendant no.2 must first establish a right of claim over the property, which is absent till he succeeds against the estate of defendant no.1 and only thereafter that the question of setting up a counter claim against appellant may arise – Issues were framed on 12.02.2019 and the application for counter claim was filed almost two years thereafter, in 2021 – Defendant no.2 is seeking specific performance of an agreement dated 21.10.2011, which provided execution of the sale deed within twelve months – Defendant no.2 did not take any action – In any event, the next course of action to seek execution of the sale deed arose immediately after January 2012 when the appellant instituted a suit seeking annulment of so-called agreement to sell – Defendant no.2 did nothing – Only after the death of his vendor in October 2013 and after framing of the issues in February 2019 that the defendant no.2 decided to file the application, only after nine years of the filing of the suit, which was two years after framing of the issues. [Paras 22, 23, 25, 27] Case Law Cited Rohit Singh & Ors. v. State of Bihar [2006] Supp. 7 SCR 278 : (2006) 12 SCC 734; Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri [2019] 17 SCR 214 : (2020) 2 SCC 394 – relied on. Munishamappa v. M. Rama Reddy, 2023 SCC OnLine SC 1701; Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske [2023] 6 SCR 175 : (2023) 19 SCC 175; Satyender v. Saroj [2022] 13 SCR 342 : (2022) 17 SCC 154; Jag Mohan Chawla v. Dera Radha Swami Satsang [1996] Supp. 2 SCR 509 : (1996) 4 SCC 699; Kishore Kumar Khaitan & Anr. v. Praveen Kumar Singh [2006] 2 SCR 176 : AIR 2006 SC 1474 – referred to. List of Acts Constitution of India; Code of Civil Procedure, 1908. 154 [2025] 10 S.C.R. Supreme Court Reports List of Keywords Counter claim; Execution of the sale deed; Suit for declaration; Agreement to sell; Amend written statement; Specific performance; Right of claim. Case Arising From
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