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Madras High Court · body

2012 DIGILAW 2577 (MAD)

. v. .

2012-06-21

V.PERIYA KARUPPIAH

body2012
Judgment : 1. A.No.6520 of 2009: This application has been filed by the applicants to reject the counter claim filed by the 1st defendant in the above suit and exclude the reliefs prayed therein with costs to the plaintiffs. 2. A.No.6521 of 2009: This application has been filed by the applicant to permit her to remit the 50% of the lease amount payable by applicant/1st defendant viz. Rs.25,000/-every month to the credit of the suit during the pendency of the suit proceedings in C.S.No.300 of 2009. 3. A.No.6523 of 2009: This application has been filed by the applicant/3rd party seeking to pass suitable orders, impleading him as a 3rd defendant, in the above suit and applicant herein for the purposes of proper and better adjudication of the issues. 4. A.No.5118 of 2009: This application has been filed by the applicant/1st defendant to issue a prohibitory order prohibiting the garnishee from paying the monthly rents payable by it to the respondents 1 to 4 / plaintiffs herein pending disposal of the suit and direct them to continue to deposit the same every month to the credit of the suit. 5. A.No.5119 of 2009: This application has been filed by the applicant/1st defendant seeking to permit him to invest the sum of Rs.1,05,56,000/-in a fixed deposit for a period of 3 years and produce the deposit receipt to be retained by the Registrar General to the credit of the suit to facilitate to adjudicate about the rights, obligations and liabilities of the plaintiffs as well as the 1st defendant. 6. The applicants in A.Nos.6520 and 6521 of 2009 are the plaintiffs and the respondents are the defendants 1 and 2. The applicants in A.No.6521 of 2009 is the 1st defendant and the respondents are the plaintiffs 1 to 4 and the 2nd defendant. The applicant in A.Nos.5118 and 5119 is the 1st defendant and the respondents 1 to 4 are the respondents in both the applications. The 5th respondent in A.No.5118 of 2009 is the garnishee. 7. The applicant in A.No.6523 of 2009 is the 3rd party and the respondents 1 to 4 are the plaintiffs 5 and 6 and the defendants 1 and 2. 8. For convenience, the status of parties in the suit is referred infra. 9. Heard Mr. T.R. Ramanujun, learned Senior counsel appearing for M/s. Rank Associates for the plaintiffs and Mr. 7. The applicant in A.No.6523 of 2009 is the 3rd party and the respondents 1 to 4 are the plaintiffs 5 and 6 and the defendants 1 and 2. 8. For convenience, the status of parties in the suit is referred infra. 9. Heard Mr. T.R. Ramanujun, learned Senior counsel appearing for M/s. Rank Associates for the plaintiffs and Mr. R. Thiagarajan, learned counsel appearing for the 1st defendant. Mr. Asif Ali, learned counsel appearing for the 2nd defendant and Mr. Abdul Hameed, learned counsel appearing for the applicant/3rd party in A.No.6523 of 2009 and Mr. S. Rajunathan, learned counsel appearing for the 5th respondent in A.No.5118 of 2009. 10. The learned Senior counsel Mr. T.V. Ramanujun, would submit in his argument that the plaintiffs 1, 2, 4 have filed the suit against the defendants 1 and 2 in which the reliefs were sought for against 1st defendant for specific performance of an agreement of sale in respect of 50% of the unexpired leasehold rights of the schedule mentioned property described in B schedule to which the consideration have been already paid and the possession has been handed over in respect of the said sale of leasehold right. He would also submit that the property situated in Old Door No.51, 52 and 53 of Edward Eliots Road, now renamed as Dr. Radhakrishnan Salai, belonged to the 2nd defendant and the persons who took lease hold rights of those properties had validly conveyed 50% in the name of the 3rd plaintiff's father and his brother Haji Iqbal and the remaining un divided 50% of leasehold rights in favour of the 1st defendant and her son and daughter namely Mr. Riaz Razzack and Ms. Raffia Razzack and that the 3rd plaintiffs father Abdul Azeez and the 1st defendant's husband Razzack were instrumental for getting the conveyance of entire leasehold rights of the said properties from the rightful owners of lease hold rights and they have planned to develop the said property after demolishing the existing super structure in one unit and to put up a massive development work with the funds of both parties. He would further submit that however, the said Razzaq, the husband of the 1st defendant expressed his willingness to assign all his rights i.e. 50% in the name of the 1st defendant regarding Door No.51 and 25% each in respect of the Door Nos.52 and 53 in the names of his son and daughter namely Riaz and Ruffia Razzack for valid consideration and for that Mr. Abdul Azeez, the 3rd plaintiff's father readily agreed for taking over the rights of Razzack and his family members and accordingly, Memorandum of Understanding dated 14.05.2003 has been entered into for valid consideration and in pursuance of the said Memorandum of Understanding, the son and the daughter of Mr. Razzack and the 1st defendant had conveyed and executed the conveyance deeds on 07.03.2005 and registered them, in respect of Door Nos.52 and 53. He would also submit that for the remaining 50% stood in the name of the 1st defendant in respect of the Door No.51 namely 50% unexpired leasehold rights, the 1st defendant entered into an agreement of sale on 09.03.2005 in favour of the plaintiffs 1, 2, 4 and Saleem who belongs to the family of Abdul Azeez and a Memorandum of Understanding was also simultaneously executed in between Abdul Azeez and the 1st defendant and a power of attorney was also executed by the 1st defendant in favour of Abdul Azeez. He would also submit that under the terms of Memorandum of Understanding dated 14.05.2003, the 1st defendant executed an agreement of sale in favour of the plaintiffs 1,2, 4 and one Mr. Saleem through which the 1st defendant has received a sum of Rs.1,05,56,000/-and there was a balance of Rs.20,00,000/- agreed to be paid at the time of registration of the sale deed. Since the consideration was fixed at Rs.1,25,56,000/-on the date of execution, and major consideration was paid, the possession of the leasehold rights were handed over to the plaintiffs 1,2,4 and the Saleem and thereafter, in the vacant space after demolishing of the existing structures, Abdul Azeez and his family members i.e. plaintiffs 1,2,4 and Saleem had put up multi-storied building in the property as a whole, by spending huge amounts. He would also submit that the 1st defendant and her son and daughter who entered the Memorandum of Understanding which was not disputed by the 1st defendant would mention that the said Abdul Azeez and Haji Iqbal who were the first party in the said Memorandum of Understanding has to obtain approval with CMDA and Corporation of Chennai at their own cost and expenses and they have also declared that they are not interested for the project of construction of the schedule mentioned land and therefore, they have given up all their right, title and interest in the proposed building in favour of the party of the 1st part namely Abdul Azeez and Haji Iqbal. He would therefore, submit that the claim of the 1st defendant that she had also spend some money in putting up constructions in the property cannot be sustained and the partition relief sought for by the 1st defendant in the counter claim cannot be sustained. He would also submit that the entire constructions were put up by the Abdul Azeez who represents the plaintiffs 1, 2, 4 and Saleem after getting the possession of the said property as part performance of the agreement and also through the right obtained from the daughter and son of the 1st defendant. 11. He would also submit that the 1st defendant had admitted the execution of Memorandum of Understanding dated 14.05.2003 and the conveyance deed executed by the son and daughter of the 1st defendant and Razzack and the execution of agreement of sale dated 09.03.2005 (however it has been contended as undated) and the only point raised by the 1st defendant was that there was no date put up in the agreement of sale as 09.03.2005 as entered into between the 1st defendant and the Abdul Azeez that the date has been subsequently filled up as 09.03.2005 for the purpose of saving the period of limitation. But actually that was signed by the 1st defendant on 04.03.2005. But actually that was signed by the 1st defendant on 04.03.2005. He would also submit that the contention of the 1st defendant that it was corrected as 09.03.2005 is not true and the reasons stated by the 1st defendant for putting the date as 09.03.2005 instead of 04.03.2005 is not sustainable since as per the terms of the said agreement, 5 months time has been given for performance of the contract and that would end even according to the 1st defendant end by 04.08.2005 and the limitation period of 3 months would start on 04.08.2005 and it would be over only on 04.08.2008. However, the plaint has been presented sufficiently earlier on 09.03.2008 and therefore, the argument advanced by the learned counsel for the 1st defendant would not sustain. He would also submit that the case of the 1st defendant that the plaintiffs have corrected the date by putting it as 09.03.2005 instead of 04.03.2005 and therefore, they are not with clean hands and the discretionary relief of specific performance cannot be granted to the plaintiffs would not be available to the 1st defendant. He would also submit that the various discussions held towards the consideration regarding Rs.1,75,00,000/-and finally came to the conclusion of Rs.1,25,56,000/- were due to discussion and therefore it cannot be said that the agreement entered by the said Abdul Azeez with the 1st defendant cannot be termed as invalid. He would also submit that the receipt of Rs.1,05,56,000/- was admittedly received by the 1st defendant and the copy of the said cheque has also been produced by the plaintiffs in the typed set and the balance amount of Rs.20 lakhs was also paid through the cheque to the 1st defendant and it was also encashed by the 1st defendant and therefore, the agreement dated 09.03.2005 was also ratified by the 1st defendant which cannot be repudiated. He would also submit in his argument that the defence taken by the 1st defendant that she had lent a sum of Rs.50 lakhs to Abdul Azeez among various other transactions and for payment of the said loan amount only Abdul Azeez has paid Rs.20 lakhs and it was not for the consideration of the agreement of sale dated 09.03.2005 cannot be sustained. Since the 1st defendant did not produce any document for the proof of the alleged loan obtained by Abdul Azeez from the 1st defendant, when the loan amount as well as agreement of sale has been paid, it cannot be sought to be rescinded by the Court at the request of the 1st defendant. He would also submit that the 1st defendant had impliedly ratified the agreement of sale and there was no denial of the execution of the said agreement and the defence taken by the 1st defendant that the plaintiff had come forward with unclean hands by showing the payment of Rs.20 lakhs as consideration whereas there was a loan amount by the said Abdul Azeez, was clandestinely stated which cannot be sustained. He would also submit that when the entire consideration has been paid towards the agreement of sale dated 09.03.2005 and in pursuance of the said agreement, the entire possessory right had been also handed over to the said Abdul Azeez on behalf of the plaintiff and construction has been put up by the plaintiffs 1,2,4 and Saleem through Abdul Azeez, after spending enormous money from their sources. It is not possible for the 1st defendant to seek for rescinding the contract entered into between the plaintiffs 1, 2, 4 and Saleem through Abdul Azeez by stating contradictory reasons. He would also submit that it cannot be sought for rescinding the contract, since in a similar agreement, the son and daughter of the 1st defendant have already executed conveyance deed and the construction was put up at huge cost on the side of the plaintiffs 1, 2, 4 and Saleem and the said Saleem had assigned the right in favour of the 3rd plaintiff validly for consideration through a conveyance deed and the 3rd plaintiff had stepped into the shoes of the said saleem to pursue her right as per the agreement of sale dated 09.03.2005. He would further submit that the said approval of right would not amount to a right to sue as mentioned under Section 6(e) of the Transfer of Property Act. He would further submit that the said approval of right would not amount to a right to sue as mentioned under Section 6(e) of the Transfer of Property Act. He would also submit that the plaintiffs, being the persons, to object the impleadment of the said Saleem have no objection for the said impleadment and the reason put forth by the 3rd party/Saleem that he had received a sum of Rs.65 lakhs should not have been even if directed to be repaid in his absence in the suit. He would also submit that the said 3rd party is a necessary party to the suit and he was sought to have been impleaded as 3rd defendant and therefore there may not be any claim for him in the suit but he ought to have defended his case and to state the facts regarding the assignment or conveyance of the right in the property in favour of the 3rd plaintiff. He would also submit that he is a necessary party to the suit and he has no objection for ordering impleadment of the 3rd party as 3rd defendant. He would further submit that the counter claim was made by the 1st defendant on the plea of rescinding the agreement of sale under Section 27 of the Specific Relief Act, which is not possible since the 1st defendant herself, has ratified the said contract by receiving the money payable under it and on the threshold, the said plea of the 1st defendant for rescinding the contract cannot be sustained under the provisions of Section 27 of Specific Relief Act. He would also submit that the 1st defendant having admitted the execution of the agreement of sale dated 09.03.2005 along with the Memorandum of Understanding and the Power of Attorney executed in favour of Abdul Azeez had falsely disputed the date as signed by her only on 04.03.2005 and the date was included and incorporated as on 09.03.2005. Similarly, the Memorandum of Understanding dated 14.05.2003 entered into between Abdul Azeez and Haji Iqbal on behalf of the plaintiffs on one part and the 1st defendant and her son and daughter on another part was not disputed by the 1st defendant. Similarly, the Memorandum of Understanding dated 14.05.2003 entered into between Abdul Azeez and Haji Iqbal on behalf of the plaintiffs on one part and the 1st defendant and her son and daughter on another part was not disputed by the 1st defendant. It has been also pointed out that it was categorically admitted in page No.69 of the typed set, she had stated that they are not interested in the project of constructing the Multi storied building in the schedule mentioned land and therefore, they have given up all their right, title and the interest in the proposed building in favour of the party of the 1st part and therefore, the alleged submission of the 1st defendant that she already paid some money towards construction and she is entitled to a partition of her share in the property, cannot be sustained and there is no cause of action for the said claim. He would therefore submit that the rescinding of the contract as well as the claim over the super structure are not sustainable without any evidence. He would also submit that the counter claim which has to be treated as plaint can be dismissed or rejected under Order 7 Rule 11 CPC on the reason of want of cause of action. He would also submit that the plaintiffs have filed the application for rejecting the counter claim and it may be ordered since the counter claim made in the written statement are nothing but abuse of process of law. He would further submit that the lease hold rights in the properties as well as the properties in Door Nos.51, 52 and 53 are not separable and the relief sought for in the counter claim is also not sustainable. He would also submit that the leasehold rights has been delivered by the 1st defendant and that the plaintiffs through Abdul Azeez had taken possession and had constructed a huge building with huge expenditure and they became the owner of major part of the property except the leasehold rights to be executed through the sale deed by the 1st defendant and therefore, there cannot be any injunction as sought for by the 1st defendant in the counter claim be made against the plaintiffs. He would further submit that the counter claim filed is highly an abuse of process of law. 12. He would further submit that the counter claim filed is highly an abuse of process of law. 12. He would also submit that the 1st defendant had filed an application in A.No.6521 of 2009 seeking permission to pay 50% of the lease amount for the vacant site of Door No.51, since the 1st defendant is deemed to be still the owner of the said leasehold right until the conveyance deed has been executed and to direct the 2nd defendant to receive the rent of Rs.25,000/- per month and to issue the receipt to him. He would also submit that the 1st defendant had surrendered the leasehold right to the plaintiffs through Abdul Azeez and from the said date onwards, the plaintiffs have paid the entire lease payable to the 2nd defendant every month in the name of the plaintiffs and the 1st defendant jointly and there is no necessity for the 1st defendant to pay 50% of the lease amount through 2nd defendant since she had already surrendered the leasehold right to the plaintiffs as per the Memorandum of Understanding dated 14.05.2003 and the agreement of sale dated 09.03.2005. The 1st defendant had asked the said permission in order to create confusion and to get benefit out of it. He would also submit that since the property, namely the lease hold right is with the possession of the plaintiffs, there is no necessity for payment of the lease amount by the 1st defendant. 13.He would also submit in his argument that the 1st defendant had sought for the permission to deposit the part of consideration agreement dated 09.03.2005, namely Rs.1,05,56,000/- in a fixed deposit in the name of Registrar General and to produce it in Court would not in any way sustained since the plaintiffs are not intending to get back the amount paid by them and they are stressing on the relief of specific performance. The actual consideration was Rs.1,25,56,000/- and the 1st defendant wantonly did not account the said Rs.20 lakhs paid by the plaintiffs to the 1st defendant towards the part of consideration. Therefore, the 1st defendant is not entitled to seek for the deposit of Rs.1,05,56,000/- either in fixed deposit in the name of Registrar General or to deposit such money into Court. Therefore, the 1st defendant is not entitled to seek for the deposit of Rs.1,05,56,000/- either in fixed deposit in the name of Registrar General or to deposit such money into Court. He would also submit that in pursuance of the agreement dated 09.03.2005, the plaintiffs have constructed a huge building and they are in possession of the said building and therefore, the question of refund of the consideration paid by the plaintiffs to the 1st defendant would not germane. He would therefore request the Court that the said application seeking permission to deposit the said money of Rs.1,05,56,000/- in any form may be dismissed. 14. He would also further submit in his argument that the 1st defendant had also filed an application seeking direction to the garnishee to deposit the monthly rent into Court is also not maintainable. He would also submit that the garnishee is none other than the tenant of the plaintiffs and he was in occupation of the entire building as a single tenant and the rights and liabilities as landlord and tenant would be only with the plaintiffs and the garnishee and therefore, the 1st defendant who had already surrendered possession of the leasehold rights and the plaintiffs had put up constructions in the said building and leased out the same to the garnishee, the 1st defendant cannot ask the tenant as garnishee to deposit a periodical payment of rent every month into Court. He would also submit that the law regarding the deposit of money by garnishee is entirely different which is dealt with under Order 21 Rule 46, 46 (A) to 46 (F) CPC. He would further submit that the said direction sought for to deposit the periodical rent into Court is not applicable to garnishee proceedings, and on that point itself, the application has to be dismissed. He would also submit that even if the 1st defendant wins the case, her share would be a fraction and the major portion of the property would be with the plaintiffs and therefore, there is no requirement of any direction to be issued to the garnishee to deposit any rent into the Court. He would also submit that even if the 1st defendant wins the case, her share would be a fraction and the major portion of the property would be with the plaintiffs and therefore, there is no requirement of any direction to be issued to the garnishee to deposit any rent into the Court. He would also submit that the 1st defendant having surrendered the leasehold rights and possession of the property vacant and relinquished her right to put up construction in the leasehold property, there is no question of any right for the 1st defendant to seek for the deposit of the monthly rent by the garnishee into Court and therefore, he would request the Court to dismiss the said application also. 15. He would further submit in his argument that for the impleadment application filed by the said party, he has no objection and the said party is the assignor of the 3rd plaintiff, who has to be present and it was the plea of the 1st defendant raised in her written statement that Saleem should have been made as a party and the present stand taken by the 1st defendant to oppose the impleadment of 3rd party cannot therefore be sustained. He would also submit that the plea of limitation that the Saleem cannot maintain the suit for specific performance since he would be impleaded only at a later point of time, cannot be sustained because he had already parted with the right in the leasehold rights as well as in the super structure in the 7th floor to the 3rd plaintiff and the 3rd plaintiff had stepped into the shoes of the said Saleem. He would also submit that the said Saleem is a necessary party to adjudicate the dispute in between parties and therefore, he has no objection to implead him as 3rd defendant. He would also submit that the objection raised by the 1st defendant is opportunistic and there is no merit in the said objection. Therefore, he would request the Court that the said impleadment petition may be allowed. 16.The learned counsel for the 3rd party / applicant in A.No.6523 of 2009 would submit in his argument that the 1st defendant had handed over the 50% possession of the leasehold right after receiving a consideration from the applicant Abdul Azeez, Hazeem Azeez and Imtiaz Sathar in respect of Door No.1, Dr. 16.The learned counsel for the 3rd party / applicant in A.No.6523 of 2009 would submit in his argument that the 1st defendant had handed over the 50% possession of the leasehold right after receiving a consideration from the applicant Abdul Azeez, Hazeem Azeez and Imtiaz Sathar in respect of Door No.1, Dr. Radha Krishnan Salai, Chennai and the 1st defendant handed over the possession of the aforesaid property to the applicant and others who in turn put up super structures in the aforesaid property at a huge cost. The applicant had conveyed the built up area in the 7th floor which includes his right, title and interest in the property after receiving consideration from her. He would further submit that the plaintiffs have filed the suit since the 1st defendant had not executed the sale deed as done by her son and daughter in favour of the plaintiff. He would also submit that the 1st defendant having raised the plea of non-joinder of necessary party had now raised the plea of collusion in between the applicant and the plaintiffs. He would further submit that all those objects have to be dispelled by the applicant by impleading himself as one of the parties and thereby to defend the said allegations. He would also submit that the 1st defendant had also raised a defence that the conveyance executed by the applicant in favour of the 3rd plaintiff is invalid and in the event that this Court is accepting the plea of the 1st defendant, the 3rd plaintiff may seek for refund of the said money of Rs.65 lakhs from the applicant and there should not be any such decision in the absence of the applicant in the suit and therefore, the applicant may be ordered to be impleaded as 3rd defendant in the suit. He would also submit that the applicant was having nexus to the suit property and he was also one of the lawful holders of the right over the property to which he had transferred in favour of the 3rd plaintiff and therefore, the applicant is a necessary party to the suit. Therefore, he would request the Court to allow the application and the applicant may be ordered to be impleaded as 3rd defendant. 17. The learned counsel for the 1st defendant Mr. Therefore, he would request the Court to allow the application and the applicant may be ordered to be impleaded as 3rd defendant. 17. The learned counsel for the 1st defendant Mr. R. Thiagarajan would submit in his argument that the plaintiffs filed the suit for the reliefs as stated in the plaint and the plaintiffs 1,2 and 4 and the assignor of 3rd plaintiff one Saleem entered into an agreement with the 1st defendant and the right of the said Saleem was stated to have been assigned to 3rd plaintiff and she has filed the suit along with the plaintiffs 1, 2 and 4. He would further submit that the said assignment of right would be a right to sue against the 1st defendant and according to Section 6(e) of Transfer of Property Act, the right to sue cannot be transferred and enforced and on that reason, the claim of the 3rd plaintiff is liable to be dismissed. He would also submit that the relief sought for by the plaintiffs 1, 2 and 4 are the collective relief of specific performance against the 1st defendant along with the 3rd plaintiff and since the claim of the 3rd plaintiff is unsustainable, the claim of the plaintiffs 1,2 and 4 are also not sustainable. He would further submit in his argument that the assignor Saleem ought to have been impleaded as either one of the plaintiffs or party to the suit even at the time of filing the suit and the said failure to implead the assignor Saleem is fatal to the suit. He would also submit that if really the said assignment is true, the assignor ought to have given notice to the 1st defendant regarding to the assignment and therefore, it should have been a collusive act in between the said Saleem and the 3rd plaintiff so as to bring a suit against the 1st defendant. He would also submit that the impleadment application filed by the said Saleem in A.No.6523 of 2009 is beyond the period of limitation and therefore, no relief can be granted in favour of the said applicant, even if he is impleaded in the suit. 18. He would also submit that the 1st defendant had raised the defence in her counter claim to which no reply statement has been filed as per law. 18. He would also submit that the 1st defendant had raised the defence in her counter claim to which no reply statement has been filed as per law. He would also submit that when the counter claim is not disputed by way of reply statement, how the plaintiff could file the application for rejection of counter claim is a serious question to be answered. He would also submit that the agreement was clandestinely put with the date of 09.03.2005 in order to present the plaint within the period of 3 years i.e. on 07.03.2008 and on such unauthorised correction made by the plaintiff in the suit agreement, the plaintiff would be deemed coming to Court with unclean hands and therefore, the specific relief sought for by them cannot be granted. He would also submit that in the cause of action paragraph of the plaint, three agreements have been stated as produced in page nos.124, 132 and 140 of the typed set in which one agreement would state a sum of Rs.1,75,56,000/- and the other agreement dated 09.03.2005 would show a sum of Rs.1,25,56,000/- as consideration. He would also submit that the date 09.03.2005 has been filled up through ink and that will throw suspicion over the said agreement and if it is shown as corrected subsequently, the request for the discretionary relief of specific performance cannot be granted to the plaintiff. He would further submit in his argument that even if the impleadment of Saleem as sought for in A.No.6523 of 2009 has been ordered it is a serious question, as to whether the said Saleem could maintain the suit along with the plaintiffs 1, 2 and 4 since it would be a time barred claim. He would also submit that nothing was stated about the non-impleadment of Saleem in the plaint. He would also submit that all these particulars ought to have been stated in the suit for specific performance as per the mandate made in Section 16 of the Specific Relief Act. Hewould also submit in his argument that whenever the reply statement to a counter claim is not filed as per Rule 5 Order 5 of Original Side Rules. It has to be posted before Undefended Board and suitable procedure has to be followed for taking evidence before the Master in terms of the counter claim. Hewould also submit in his argument that whenever the reply statement to a counter claim is not filed as per Rule 5 Order 5 of Original Side Rules. It has to be posted before Undefended Board and suitable procedure has to be followed for taking evidence before the Master in terms of the counter claim. He would further submit in his argument, the plaintiff did not file any application for extension of time nor any reply statement with the petition has been filed to deny the counter claim. He would further submit that the plaintiff cannot file an application for rejecting the counter claim without filing any reply statement as required under Order 8 Rule 6 A (3) CPC. He would also submit that the 1st defendant is entitled to put forth his defence as the 1st defendant and the counter claim is based upon the defence and be adjudicated only along with the plaint after considering the objections in the form of any reply statement and it cannot be rejected as a plaint even though it is treated as a plaint as per Order 8 Rule 6(A) sub rule (4) CPC. 19. He would also submit that in the event of the refusal of specific relief sought for by the plaintiff, there is a circumstance to issue direction against the 1st defendant to repay the amount received by virtue of the agreement i.e. Rs.1,05,56,000/- as admitted by the 1st defendant and therefore, the 1st defendant is ready to deposit the said amount to the credit of the suit in a fixed deposit for a period of 3 years in the name of the Registrar General and to produce the same to the file of the suit. He would also submit that the said application has been filed by the 1st defendant in order to avoid payment of interest for the said refund of money. He would also submit that the 1st defendant is entitled to seek for rescinding the contract entered into between the 1st defendant and the plaintiffs 1, 2 and 4 along with Saleem on the grounds raised in the written statement, as per the provisions of Section 28 of the said Act. He would also submit that the 1st defendant is entitled to seek for rescinding the contract entered into between the 1st defendant and the plaintiffs 1, 2 and 4 along with Saleem on the grounds raised in the written statement, as per the provisions of Section 28 of the said Act. He would also submit that he is ready to deposit the said money of Rs.1,05,56,000/-in anticipation of such direction likely to be given by the Court otherwise he would be liable to pay damages as per the provisions of contract Act also. Therefore, he would request the Court that a direction may be issued as sought for by the 1st defendant to deposit the said amount of Rs.1,05,56,000/-in fixed deposit as requested in A.No.5119 of 2009. He would also submit that the alleged payment of Rs.20 lakhs by the plaintiffs 1, 2 and 4 and Saleem could not be true since the said amount was directed to be paid at the time of registration only and the claim of the plaintiff that the payment of Rs.20 lakhs was made towards sale agreement is not correct but was towards another loan transaction. 20. He would also submit in his argument that the agreements with the consideration of Rs.1,75,56,000/- available at page No.136 of the typed set and the suit agreement for Rs.1,25,56,000/- as sought for by the plaintiff would have shown that there was no consensus reached in between parties regarding the sale of lease holdrights. He would also submit that the 1st defendant did not agree to convey her interest in the building and therefore, the claim of the 1st defendant seeking for partition of her 50% of the leasehold rights in Door No.51 of the property and the proportionate building was also rightly claimed towards partition after rescinding the contract for its defects. 21. He would also submit that when the 1st defendant is found to have entitled to the partition of the suit property including super structure, the right of the 1st defendant will be jeopardised since the rents received by the plaintiffs from the entire property would be appropriated by them and the share of the 1st defendant may not be recovered from the plaintiffs. He would also submit that once the contract has been rescinded as requested by the 1st defendant, the rents receivable from the said property should have been directed to be paid to the 1st defendant and therefore, the 1st defendant had asked for a direction which is not amounting to a garnishee pro-order, but would be amounting to a direction against a garnishee to deposit the rent payable to the entire premises so as to adjudicate the proportion of the money payable to the 1st defendant and other parties at the end of the litigation. Therefore, the applicant is seeking for a direction against the tenant as garnishee to deposit the rent payable to the premises, may also be ordered. 22. He would also submit that the impleadment application has been filed by one Mr. Saleem for impleading him as a party to the suit if done at the time of the filing the plaint, the plaintiffs would have stated no objection. The main objection raised by the 1st defendant would be that the said Saleem as applicant cannot seek for impleadment at this stage, since the claim likely to have made by him, in the absence of proof of the assignment was already barred by law of limitation and therefore, no purpose for impleadment of the applicant/3rd party, Saleem in the suit, at this stage. He would also submit that the 1st defendant has asked for accounting in the prayer and the accounting prayer cannot be rejected without any enquiry. He would therefore submit that the request of the plaintiff to reject the counter claim is not supported by any point nor it can be decided that the claim made by the 1st defendant in the counter claim is without any cause of action. He would also submit that the claim made by the 1st defendant in the counter claim has to be adjudicated along with the plaint claim. Therefore, it may be dismissed and since the impleadment application filed by the 3rd party is barred by law of limitation and it may also be dismissed. He would also submit that the claim made by the 1st defendant in the counter claim has to be adjudicated along with the plaint claim. Therefore, it may be dismissed and since the impleadment application filed by the 3rd party is barred by law of limitation and it may also be dismissed. The applications filed by the 1st defendant for seeking permission to deposit a sum of Rs.1,05,56,000/-in a fixed deposit in the name of Registrar General to the credit of the suit and the direction sought to be issued against the garnishee tenant to deposit every month's rent into Court may be ordered and the lease hold rights which would be transferred the event of granting specific performance decree, is still with the 1st defendant and therefore, the 1st defendant may be permitted to pay 50% of the lease amount payable to the 2nd defendant as of right and the 2nd defendant may be directed to receive the same from the 1st defendant, and thus the said petition may be allowed. 23. The learned counsel for the 5th respondent / garnishee in A.No.5118 of 2009 would submit in his argument that the 5th respondent being the tenant of the entire building cannot be directed to deposit the rent to the credit of the suit when the counter claim of the 1st defendant even if liable to be decreed only to an extent of 50% on lease hold right in respect of Door No.51 only and there was no right in the building or in the leasehold right in other two Door Numbers and the buildings thereon and therefore, there could not be any rent payable to the 1st defendant except the rent payable to 50% leasehold right in Door No.51 and that is assessable at any time and therefore, there is no need for the deposit of the entire rent payable by the tenant to the plaintiff. He would also submit that the garnishee proceedings are not applicable to the tenant and the 1st defendant cannot seek any direction against the 5th respondent who is not a party to the proceedings. Therefore, he would request the Court to dismiss the application in A.No.5118 of 2009. 24. He would also submit that the garnishee proceedings are not applicable to the tenant and the 1st defendant cannot seek any direction against the 5th respondent who is not a party to the proceedings. Therefore, he would request the Court to dismiss the application in A.No.5118 of 2009. 24. The learned counsel for the 2nd defendant would submit in his argument that the plaintiffs have put up construction in the leased property in its entirety and there was an agreement for sale in between the plaintiff and the 1st defendant in respect of 50% of the leasehold rights in respect of Door No.51 and the 1st defendant had also surrendered the entire leasehold right to the plaintiff as per the said document and the sale deed is yet to be executed and therefore, the 2nd defendant is issuing receipts in the name of the plaintiff and the 1st defendant on payment of the lease by the plaintiff who is in possession of the leasehold rights and therefore, the claim of the plaintiff is quite right and the 2nd defendant is ready to abide any direction issued by the Court and suitable direction may be issued. 25. I have given anxious thoughts to the arguments advanced on either side. 26. The suit has been filed by the plaintiffs 1, 2, 4 for the following reliefs:- a. For a partition and separate possession of the building in favour of the plaintiffs and the 1st defendant in respect of the land at 23.2% and in respect of the building 50% on payment of the construction cost by this defendant and her children on a date to be fixed by this Court. b. For a declaration that the plaintiffs have forfeited their rights to seek performance of the alleged contract dated 9.3.2005 in favour of the manipulation of the agreement for sale and consequently relieve this defendant from the clutches of the agreement by granting a decree for rescinding the contract dated ------ March, 2005; c. Directing the plaintiffs to render true and proper accounts of the income realised from the property after defraying all the expenses incurred thereto after payment of the statutory dues and arrive at the cost of construction payable by the 1st defendant herein. d. For a permanent injunction restraining the plaintiffs or anyone claiming through them from encumbering, alienating or dealing with the unexpired lease in respect of 4748 sq.ft. in the land and also in the superstructure erected thereon either by way of sale, mortgage, lease or otherwise detrimental to the interest of the 1st defendant; e. Costs of this defendant. 27. In the plaint, the entire averments, stated as to how the leasehold rights were obtained from the previous owners by the plaintiffs' family namely, Abdul Azeez and the 1st defendant Razzack family was admitted. The proportion of right obtained by the Abdul Azeez family and Razzack family in Door Nos.51, 52 and 53 has also been admitted. No dispute regarding the Memorandum of Understanding executed in between the said two parties on 14.05.2003 and thereby the Razzack family including the 1st defendant and her son and daughter executed the Memorandum of Understanding in favour of the Abdul Azeez family relinquishing their lease hold right held in the suit property namely Door Nos.51, 52 and 53 in favour of Abdul Azeez family and they have also stipulated that they would execute an agreement of sale and thereafter, a deed of conveyance. As per the agreement reached in the Memorandum of Understanding deed of conveyance were executed by the son and daughter of the 1st defendant, in respect of Door Nos.52 and 53 in favour of Abdul Azeez family and the plaintiffs representing Abdul Azeez family had thus obtained the entire leasehold rights in respect of Door Nos.52 and 53. As regards Door No.51, the Memorandum of Understanding dated 14.05.2003, shows that the leasehold right of the 1st defendant was relinquished and in pursuance thereof she executed an agreement of sale on 09.03.2005 and a general Power of Attorney in favour of Abdul Azeez. The said execution of the agreement of sale is also admitted by the 1st defendant except, the date of the document. It has been contended that the said agreement of sale was not dated when the 1st defendant signed the document on 04.03.2005. Therefore, I could see that the execution of the said agreement, either signed on 04.03.2005 or dated 09.03.2005, has been admitted by the 1st defendant. Therefore, the terms of the said agreement would bind upon the 1st defendant. It has been contended that the said agreement of sale was not dated when the 1st defendant signed the document on 04.03.2005. Therefore, I could see that the execution of the said agreement, either signed on 04.03.2005 or dated 09.03.2005, has been admitted by the 1st defendant. Therefore, the terms of the said agreement would bind upon the 1st defendant. The plea of the 1st defendant was that by writing a wrong date namely 09.03.2005 in the said document to which the 1st defendant signed on 04.03.2005, the plaintiffs have come to Court with unclean hands. Whether it is true or not, has to be found only in a full fledged trial, while exercising discretion of the Court in granting specific relief sought for by the plaintiffs. In the said agreement as well as in the Memorandum of Understanding dated 14.05.2003, the 1st defendant and her son and daughter had relinquished their rights to put up constructions in the vacant land, after the demolition of the old structure. Similarly, it has been mentioned in the agreement of sale dated 09.03.2005, the leasehold rights are surrendered and possession was given to the plaintiffs. The 1st defendant is estopped from questioning the said averments made in the Memorandum of Understanding and in the agreement. Therefore, it could easily be inferred that the entire possession of the leasehold rights as well as the constructed buildings put up in the said property are with the plaintiffs and the said construction was entirely put by the plaintiffs at their costs. However, the 1st defendant has sought for the right over the super structure also by stating that she had also contributed some money towards the said construction even after surrendering of possession of the leasehold right, after relinquishing her right to put up construction, in the vacant site. 28. In the said circumstances, the learned counsel for the 1st defendant would contend that all these things should have been gone into in a full fledged trial. He has also insisted that the plaintiff did not file any reply statement to the counter claim under Order 8 Rule 6(A) (3) CPC and it would be amounting to an admission of the claim in the counter claim. He has also insisted that the plaintiff did not file any reply statement to the counter claim under Order 8 Rule 6(A) (3) CPC and it would be amounting to an admission of the claim in the counter claim. The said submission made by the learned counsel for the 1st defendant has to be considered after perusal of Order 8 Rule 6(A) which would runs as follows:- "6-A. Counter-claim by defendant.-(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." 29. In sub rule 2 of Order 8 Rule 6 (A) CPC, it has been categorically mentioned that whenever the counter claim has been made, it would be taken as a cross suit so as to enable the Court to pronounce the final judgment in same suit both on the original claim and on the counter claim. Therefore, whenever an application has been filed to reject the plaint where the counter claim has been filed, it cannot be adjudicated without discussing the counter claim. Similarly, when an application is filed to reject the counter claim that should be considered over the plaint averments and the plaint reliefs should also be considered and disposed of simultaneously. Therefore, whenever an application has been filed to reject the plaint where the counter claim has been filed, it cannot be adjudicated without discussing the counter claim. Similarly, when an application is filed to reject the counter claim that should be considered over the plaint averments and the plaint reliefs should also be considered and disposed of simultaneously. Therefore any rejection of counter claim could be adjudicated simultaneously whether it is at the stage of rejection of counter claim or at the stage of trial of the suit. 30. Moreover, it is quite clear that the 1st defendant had raised certain pleas regarding spending of money towards construction of super structure even after relinquishment of putting up any construction in the vacant site, as agreed by her in the Memorandum of Understanding dated 14.05.2003. The said plea requires oral evidence for arriving to a conclusion. Similarly, the plaint relief sought for in the plaint, for the grant of specific relief in respect of the same property should have been considered in a full fledged trial only, after considering the evidence to be adduced on either side. Whether the agreement questioned by the 1st defendant could be rescinded or not, be disposed of with the help of the oral evidence. The consequences of rescinding the contract or its refusal to order rescission could also be taken along with the reliefs sought for in the plaint. The dispute raised regarding the payment of consideration of Rs.20 lakhs as pleaded by the plaintiff was disputed by the 1st defendant that it was made towards some other account. Even though the 1st defendant did not produce any document of loan for Rs.50 lakhs obtained by the plaintiffs from the 1st defendant, this has to be considered only in a trial. If for any reason, the claim of the 1st defendant is accepted, the main relief which is an equitable relief sought for by the plaintiff for specific performance which is an equitable relief sought for by the plaintiff which is also to be effected. All these factual aspects should have been considered only with the help of evidence and not through adjudication under Order 7 Rule 11 CPC. All these factual aspects should have been considered only with the help of evidence and not through adjudication under Order 7 Rule 11 CPC. When further evidence is necessary for the adjudication of the counter claim along with the main reliefs sought for in the plaint, I am of the considered view that the counter claim cannot be disposed, on the basis of the grounds raised by the plaintiffs in the application for the rejection of the counter claim. The arguments advanced by the learned counsel for the 1st defendant was that the counter claim was not replied by way of filing reply statement and therefore, the pleadings in the plaint should have been deemed to have accepted by the plaintiff. There is no bar for the plaintiff to apply to this Court for condoning the delay in presenting or filing the reply statement in answer to the counter claim made in view of the filing of this petition and seek the discretion of the Court in condoning the delay with such particulars and counter claim were also is adjudicated along with the plaint under Order 8 Rule 6(A)(2) CPC, it is not germane. At this stage it is not to dispose the counter claim without any evidence. Therefore, the prayer sought for by the plaintiffs to reject the counter claim cannot be sustained at this stage. 31. As regards the impleadment application, I could see that the 3rd party has come forward with an application to implead himself as 3rd defendant in the suit. The contentions raised by the 1st defendant was that the claim of the said 3rd party who was also one of the purchasers who assigned the said right in favour of the 3rd plaintiff even if impleaded is not sustainable in view of the law of limitation. The main contention was that as per Section 54 of the Limitation Act, the period is already over and the proposed party would be deemed to have filed the suit on the date of implication and on the date of filing the petition, the suit claim was barred by limitation and therefore, he cannot be impleaded as plaintiff or defendant. The main contention was that as per Section 54 of the Limitation Act, the period is already over and the proposed party would be deemed to have filed the suit on the date of implication and on the date of filing the petition, the suit claim was barred by limitation and therefore, he cannot be impleaded as plaintiff or defendant. However, the contentions of the applicant/3rd party was that the assignment executed by him was questioned by the 1st defendant and in case the 1st defendant's plea was accepted then the assignment will be an invalid one and the 3rd party would seek refund of the money to an extent of Rs.65 lakhs received by the applicant and therefore he has to order as a party so as to support the assignment and to see that he should not be adversely affected for non implication. The said plea of the applicant that he is a necessary party to establish since he wants to be impleaded as 3rd defendant and not to sue as one of the plaintiffs. 32. Further more, it is the dictum of the Hon'ble Apex Court that even though the plea of limitation is put forth at the stage of impleadment it cannot be rejected on that ground that it can be adjudicated after impleadment of parties to the suit and at the time of full fledged trial, it can be considered. 33. Apart from that, in a judgment cited by the learned counsel for the 1st respondent in AIR 1973 Madras 25 (P.R. Nallathambi Goundan v. Vijaya Raghavan and others), which would categorically lay down as follows:- "14. ....... It would be a travesty of justice to hold that a party who is bound by the result of a litigation, though not eonomine a party to the litigation shall be denied an opportunity to draw the attention of the Court to some step which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the court to implead the parties concerned either under Order I Rule 10 or in exercise of its undoubted inherent power under "Section 151, C.P.Code". 34. In all such cases, it is the plain duty of the court to implead the parties concerned either under Order I Rule 10 or in exercise of its undoubted inherent power under "Section 151, C.P.Code". 34. In yet another judgment of Hon'ble Apex Court reported in 2005 (6) SCC 733 (Kasturi v. Iyyamperumal and others) it is found in the relevant passage would run as follows:- "14.In this case at para 9, the Supreme Court while deciding whether a person is a necessary party or not in a suit for specific performance of a contract for sale made the following observation:(SCC p.150) "Since the respondent is not a party to the agreement of sale, it cannot be said that without his presence the dispute as to specific performance cannot be determined. Therefore, he is not a necessary party." (emphasis supplied) 15. As discussed hereinafter, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit." 35. In yet another judgment of Hon'ble Apex Court reported in 2003 (4) Scale 108 (Amit Kumar Shaw and another v. Farida Khaton and another), it has been held as follows:- "9. The object of Order 1 Rule 10 is to discourage contests on technical pleas, and to save honest and bona fide claimants from being non-suited. The power to strike out or add parties can be exercised by the Court at any stage of the proceedings. Under this Rule, a person may be added as a party to a suit in the following two cases: 1. When he ought to have been joined as plaintiff or defendant, and is not joined so, or 2. When, without his presence, the questions in the suit cannot be completely decided." 36. On a careful understanding of the aforesaid dictum laid down by the Hon'ble Apex Court and this Court, I could see that the question of limitation would not come in the way of passing an order of impleadment and the limitation plea has to be considered only in the trial and subject to such conditions, the person whose presence is required in the suit can be impleaded. Apart from that it has also been laid down that a person is a proper and necessary party unless his presence is there the suit cannot be adjudicated and it should be ordered at the discretion of the Court. 37. As far as this case is concerned, the 3rd party / applicant is said to be one of the parties to the suit agreement, who after the completion of the construction, allotted with 7th floor portion of which he had transferred, along with the right in the agreement, to the 3rd plaintiff. The said right is a right in property and it can be distinguished from "a right to sue" as contemplated under Section 6(e) of Transfer of Property Act. However, the applicant has sought for impleadment as 3rd defendant in order to dispel the alleged plea of collusion in between the plaintiffs and the applicant. Further it was argued that, in case the plea made in counter claim was allowed and the contract has been ordered to be rescinded in favour of the 1st defendant, the 3rd plaintiff may sue for the refund of Rs.65 lakhs received by the applicant from 3rd plaintiff and therefore, it has to be agitated and defended by the applicant at the suit itself. The pleas and the said submissions of the applicant are quite convincing for considering the applicant as a proper and necessary party to the suit. Therefore, I have no hesitation to order impleadment of the applicant as 3rd defendant in the suit. 38. So far as the claim for deposit of Rs.1,05,56,000/-is concerned, the plaintiff has not prayed for refund of the money paid by him as an alternate prayer. The solid case of the plaintiff was that on the basis of the agreement, the plaintiff had acted upon and put up construction at a huge costs, which was not challenged by the 1st defendant until the case was filed against them. It has been contended by the plaintiffs that the plaintiffs have paid not only a sum of Rs.1,05,56,000/-but also another sum of Rs.20 lakhs towards the entire consideration for the agreement of sale. The case of the 1st defendant that the said sum of Rs.20,00,000/-was paid by the plaintiffs towards repayment of a loan for a sum of Rs.50,00,000/-has been denied by the plaintiff. The case of the 1st defendant that the said sum of Rs.20,00,000/-was paid by the plaintiffs towards repayment of a loan for a sum of Rs.50,00,000/-has been denied by the plaintiff. When there is a dispute regarding the payment of consideration of the agreement of sale it is not germane for the Court to decide, as to what amount was paid by the plaintiffs to the 1st defendant towards the agreement of sale or it was a different transaction. The said fact has to be gone into in support of the oral evidence to be adduced during trial. In the earlier paragraph, it has been decided that the plaint claim as well as counter claim have to be adjudicated simultaneously only in a full fledged trial in support of oral evidence. Therefore, the direction to deposit a sum of Rs.1,05,56,000/- received by the 1st defendant from the plaintiffs as consideration of the agreement of sale cannot be ordered since it has to be awaited till the disposal of the suit. At the time of passing judgment only it could be decided as to whether specific performance as asked for by the plaintiffs can be granted to the plaintiff or the contract can be rescinded and the counter claim be ordered or any refund of the money be ordered in the event, an amendment in the prayer is made by the plaintiff. Therefore, the request of the applicant seeking for deposit of the money to the tune of Rs.1,05,56,000/-in a fixed deposit in favour of the Registrar General and to be produced into Court for being kept to the credit of the suit is not permissible. Accordingly, the application is dismissed. 39. Nextly, the application seeking for a direction to be issued to the garnishee / tenant to deposit every month's rent has to be considered. I could see that the 1st defendant surrendered her leasehold rights in the admittedly executed document namely, the agreement of sale and in yet another admitted document namely Memorandum of Understanding dated 14.05.2003. The 1st defendant had relinquished her claim of putting up construction in the vacant site of leasehold property after demolishing the existing construction. I could see that the 1st defendant surrendered her leasehold rights in the admittedly executed document namely, the agreement of sale and in yet another admitted document namely Memorandum of Understanding dated 14.05.2003. The 1st defendant had relinquished her claim of putting up construction in the vacant site of leasehold property after demolishing the existing construction. Therefore, I could see that the relinquishment was even prior to the commencement of the construction work and therefore, the entire construction was "prima facie" found to have been, put up by the plaintiffs only and not by the 1st defendant. However, it can be decided in the trial only with the support of the evidence. Furthermore, the leasehold rights of other parties namely the son and daughter of the 1st defendant have also been surrendered to the plaintiffs and therefore, if in case, the counter claim is allowed, the right of the 1st defendant would be 50% of the leasehold rights in Door No.51 alone. The 1st defendant would not be found to be entitled to the entire super structure as well as the other leasehold rights in Door Nos.52 and 53 and 50% in Door No.51. If for any reason, the garnishee is directed to deposit the entire rent payable towards the property which is admittedly in one unit it will certainly affect the rights of the plaintiffs who are the owners of the major portions. In such a case, the rateable payment payable to the 1st defendant could be ascertained at the time of trial. In the counter claim, the 1st defendant has sought for accounting relief and therefore, there would not be any prejudice for the 1st defendant in dis-allowing the prayer to issue a direction to garnishee / tenant to deposit the rent every month into Court. Therefore, the claim of the 1st defendant seeking for the direction against the garnishee is not allowable and accordingly the said application is also dismissed. 40. The further request of the 1st defendant seeking for permission to pay 50% of the rent payable towards the leasehold rights, for Door No.51, is concerned, I could see that if a specific performance decree is granted and a deed of conveyance has been executed, the 1st defendant will part away the ownership of the leasehold rights in respect of her 50% in Door No.51. However, I could see in a Memorandum of Understanding as well as in the agreement of sale which were admittedly executed by the 1st defendant, 50% of leasehold rights belonging to 1st defendant was surrendered to Abdul Azeez and consideration was received in the said agreement. The recitals of the agreement would go to show that the plaintiffs were permitted to put up construction in the said property. The said versions in the agreement and Memorandum of Understanding would go to show that the plaintiffs are in absolute possession of leasehold rights as well as the constructed structures in the leasehold properties. It is also submitted that the plaintiffs are paying the rent payable to Door No.51 to the 2nd defendant in the names of plaintiffs on one part and the 1st defendant on another part towards their 50% each and obtained receipts accordingly. When the 1st defendant is not in actual possession or enjoyment of the leasehold rights if the 1st defendant is permitted to pay 50% of the rent payable to the 2nd defendant which will certainly create confusion. According to 2nd defendant that the rent has been paid only by the plaintiffs and the receipt has been given in the names of the plaintiffs and the 1st defendant collectively to the plaintiffs. The counter claim put forth by the 1st defendant was also for accounting relief and if the pleas of the 1st defendants are accepted and the plaintiffs are not found entitled to specific performance after a full fledged trial, it can be decided as to what was the amount payable by the 1st defendant towards the payment of rent already paid by the plaintiffs on behalf of the 1st defendant to the 2nd defendant. Therefore, the said prayer put forth by the 1st defendant to give her permission to pay 50% of the rent payable towards the 50% of the leasehold rights of Door No.51 is not allowed. Accordingly, the said application is also dismissed. 41. For the foregoing discussion, I am of the considered view that the application filed by the plaintiff seeking for the rejection of the counter claim is not allowed. Accordingly, the applications in A.Nos.6520 and 6521 of 2009 are dismissed and the application in A.No.6523 of 2009 seeking for the impleadment of the applicant is allowed and the applications in A.Nos.5118 and 5119 of 2009 are dismissed. 42. Accordingly, the applications in A.Nos.6520 and 6521 of 2009 are dismissed and the application in A.No.6523 of 2009 seeking for the impleadment of the applicant is allowed and the applications in A.Nos.5118 and 5119 of 2009 are dismissed. 42. In the peculiar circumstances, the parties are directed to bear their respective costs.