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no counter claim of injunction is maintainable in a suit for partition =As long as the suit retains the character of one for partition, the grant of injunction would almost be an extraordinary phenomenon.=Assuming that there is no prohibition in law for filing of a counter claim for the relief of injunction in a suit for partition simplicitor, the person claiming must state the relevant facts that constitute the cause of action. It does not need any emphasis that the cause of action for claiming relief of injunction would be the acts of interference by the plaintiffs in the suit with the possession of the defendants making the counter claim. The affidavit filed in support of I.A.No.610 of 2010 or for that matter, the text, which is sought to be introduced, in the form of a counter claim, is blissfully silent as to the existence of cause of action. For all practical purposes, a counter claim is as good as a suit, and if no cause of action is stated in a suit, it deserves to be rejected. So is the case with the counter claim. It is not as if the filing of a suit by the appellant by itself would constitute the cause of action for filing of the counter claim. The order passed by the trial Court cannot be sustained in law.

THE HON‘BLE MR JUSTICEL.NARASIMHA REDDY

English: Hight court of the state of Andhra pr...

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Civil Revision Petition No.382 of 2011

05.12.2011

Between:
Kommireddy Linga Reddy and another

Palgiri Anji Reddy andothers

COUNSEL FOR PETITIONERS: Sri Narasimhulu
COUNSEL FOR RESPONDENTS: Sri Nimmagadda Satyanarayana

ORDER:

The petitioners herein filed O.S.No.232 of 2009 in the Court of Junior
Civil Judge, Darsi, against respondents 2 to 4, their brothers for the relief of
partition and separate possession of the suit schedule property. The 1st
respondent herein got himself impleaded as defendant No.4 in the suit claiming
interest in the property. He filed I.A.No.610 of 2010 with a prayer to permit
him to make a counter claim for the relief of perpetual injunction. It was
pleaded that he filed O.S.No.195 of 2001 in the same Court on earlier occasion
against respondents 2 to 4 for the relief of perpetual injunction in respect of
the same property and that a decree has been passed therein. He pleaded that
the present suit was filed by the petitioners only with a view to overcome the
decree passed against their brothers. Mention was also made to the attempts
made by the petitioners to claim title and possession over the property.

The application was opposed by the petitioners. They state that the
application is not maintainable in law and that the 1st respondent has already
filed a written statement in collusion with respondents 2 to 4 to defeat
their interests. The trial Court allowed the I.A. through order, dated
08.11.2010. The same is challenged in this revision.

Learned counsel for the petitioners submits that the I.A. filed by the 1st
respondent was impermissible in law and it is bereft of any cause of action. He
contends that in a suit for partition, it is impermissible for any defendant to
claim the relief of injunction. Learned counsel further submits that in case,
the relief of injunction granted in O.S.No.195 of 2001 is violated in any way,
the 1st respondent can always take steps in accordance with law

Learned counsel for the 1st respondent on the other hand submits that the
necessity or occasion for his client to file I.A.No.610 of 2010 arose on account
of the fact that the petitioners started asserting title and possession over the
property contrary to the findings recorded and the relief granted in O.S.No.195
of 2001. He submits that there is nothing in law, which prohibits the filing of
counter claim for injunction in a suit for partition.

The relief claimed in O.S.No.232 of 2009 is the one for partition and
separate possession and it is among the brothers. The 1st respondent got
himself impleaded claiming rights over the suit schedule property. As and when
the Court takes up matter, the 1st respondent can put forward his contention. In
case, his plea that he is the owner of the said property, is accepted by the
Court, the suit itself deserves to be dismissed, since the property will not be
available for partition, whatever be the relationship between the parties. It
is almost uncommon that the counter claim for the relief of perpetual injunction
is made in a suit for partition simplicitor. By and large, the parties to such
a suit would be either coparceners or co-owners and even if non-coparceners or
non-co-owners are added as parties, it would be in their capacity as persons
claiming through the co-owners etc. Even where an individual claims absolute
right in the property, in opposition to the claim for partition, the question
needs to be dealt with, at the hearing of the suit. As long as the suit retains
the character of one for partition, the grant of injunction would almost be an
extraordinary phenomenon.

Assuming that there is no prohibition in law for filing of a counter claim
for the relief of injunction in a suit for partition simplicitor, the person
claiming must state the relevant facts that constitute the cause of action. It
does not need any emphasis that the cause of action for claiming relief of
injunction would be the acts of interference by the plaintiffs in the suit with
the possession of the defendants making the counter claim. The affidavit filed
in support of I.A.No.610 of 2010 or for that matter, the text, which is sought
to be introduced, in the form of a counter claim, is blissfully silent as to the
existence of cause of action. For all practical purposes, a counter claim is as
good as a suit, and if no cause of action is stated in a suit, it deserves to be
rejected. So is the case with the counter claim. It is not as if the filing of
a suit by the appellant by itself would constitute the cause of action for
filing of the counter claim. The order passed by the trial Court cannot be
sustained in law.

Therefore, the civil revision petition is allowed and the order under
revision is set aside. This however does not preclude the 1st respondent from
making another effort to file a counter claim duly pleading the necessary facts,
in case the nature of the suit is changed on account of any amendments, at the
instance of the petitioners herein. There shall be no order as to costs.

__________
05.12.2011
Note: L.R.Copy to be marked.
(B/o)
JSU

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