Gujarat High Court
Welspun Maxsteel Limited vs Alang Marine Limited on 8 October, 2025
NEUTRAL CITATION
C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5229 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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WELSPUN MAXSTEEL LIMITED
Versus
ALANG MARINE LIMITED
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Appearance:
NANAVATI & NANAVATI(1933) for the Petitioner(s) No. 1
MR D K TRIVEDI(5283) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. D. K. Trivedi waives service of notice of Rule on behalf of the respondent. With consent of learned Advocates for respective parties, matter is taken up for hearing.
2. Heard learned Senior Advocate Mr. Devang Nanavati along Page 1 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined with learned Advocate Ms. Prachiti Shah for the petitioner and learned Advocate Mr. D. K. Trivedi for the respondent.
3. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"A. Be pleased to allow this petition.
B. Be pleased to issue a writ of Certiorari or any other writ , order or direction in the nature of setting aside the order impugned passed below Exh.33 and further be pleased to issue appropriate direction to remove the Written Submission from the record and proceedings of Special Civil Suit No. 31 of 2013, pending before the 5th Additional Sr. Civil Judge Court at Bhavnagar.
C. Pending hearing and final disposal of the present petition, be pleased to issue a writ of Certiorari or any other writ, order or direction in the nature of Stay of the order impugned passed below Exh.33 in the proceedings of Special Civil Suit No. 31 of 2013, pending before the 5th Additional Sr. Civil Judge Court at Bhavnagar."
4. As far as possible, the parties will be referred to as per their original positions before the Trial Court.
5. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:
6. The petitioner herein is original plaintiff, whereas, respondent Page 2 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined is original defendant of Special Civil Suit No.31 of 2013 pending before the Senior Civil Judge, Bhavnagar. It appears that defendant could not remain present before the Trial Court and having not filed its written statement within stipulated time, its right to file written statement closed. After framing of the issues, plaintiff submitted its affidavit in lieu of examination-in-chief.
6.1. At this stage, defendant appeared before the Trial Court and requested to reopen its right to file written statement and counterclaim, which was allowed by Trial Court vide its common impugned order dated 15/12/2014, whereby, the Trial Court has not only permitted the defendant to submit its written statement but its counterclaim as well. Hence, the present writ application by plaintiff.
7. SUBMISSIONS OF THE PETITIONER - PLAINTIFF:
7.1. At the outset, learned Senior Advocate Mr. Nanavati would submit that order impugned as regards permitting defendant to file counterclaim is ex facie illegal, exceeding its jurisdiction and contrary to law laid down by Full Bench of Hon'ble Supreme Court of India in the case of Ashok Kumar Kalra V/s.Page 3 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025
NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined Wing CDR. Surendra Agnihotri and others reported in (2020) 2 SCC 394.
7.2. Learned Senior Advocate Mr. Nanavati would humbly submit that in the case on hand, trial has already begin inasmuch as after framing of the issues, oral evidence of plaintiff is already submitted on record i.e. its affidavit in lieu of examination in chief, but plaintiff could not be cross-examined due to the non- availability of the defendant. It is submitted that as per the decision in the case of Ashok Kumar (supra), it is now the well- settled legal position of law that once issues framed and trial commenced, no counterclaim can be permitted to be filed and such a request, not to be entertained by the trial Court. 7.3. Learned Senior Advocate Mr. Nanavati would submit that though the rule of procedure is handmaid of justice, but such proposition would not be extended so far as the mandatory requirement to be fulfilled by the defendant. It is submitted that allowing the defendant to file written statement by taking liberal approach may not be disturbed by this Court, but under such pretext, the defendant cannot be permitted to file counterclaim when the trial already begun. Page 4 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025
NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined 7.4. So, making the above submissions, learned Senior Advocate Mr. Nanavati would request this Court to allow the present writ application.
8. SUBMISSIONS OF RESPONDENT-DEFENDANT:
8.1. Per contra, learned Advocate Mr. Trivedi candid in his submission that at the time of filing the impugned application below Exhibit 33 by defendant, the affidavit in lieu of examination-in-chief of the plaintiff already filed, available on record of the suit, and in that view of the matter, it may be said that the trial commenced.
8.2. Learned Advocate Mr. Trivedi would submit that due to unavoidable circumstances and reasons set out in the impugned application, the defendant could not remain present and file its written statement/counterclaim. It is submitted that once the discretion is exercised by the Trial Court when allowed impugned application, this Court should not interfere with such discretionary order passed by the Trial Court while exercising its power under Article 227 of the Constitution of India.
8.3. Learned Advocate Mr. Trivedi would humbly request this Page 5 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined Court that there would not be any serious prejudice caused to the plaintiff if the defendant is allowed to file counterclaim. It is submitted that when the plaintiff is yet to be cross-examined by the defendant, then allowing the defendant to file counterclaim would not be so illegal, thereby, this Court may not interfere with the impugned order.
8.4. Making the above submissions, learned Advocate Mr. Trivedi would request this Court not to entertain the present writ application.
9. No other and further submissions are made.
10. Having heard learned Advocates appearing for the respective parties, following emerge on record.
11. The defendant was unable to file its written statement within the stipulated time. When the impugned application below Exhibit 33 filed by the defendant, not only issues were framed by the Trial Court but in fact the plaintiff already submitted an oral affidavit in lieu of its examination-in-chief, made available on the record of the suit. This fact is not in dispute inasmuch as already recorded by trial Court in its impugned order.Page 6 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025
NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined
12. Nowhere in the CPC, it has been defined when trial commenced. Nonetheless, by various pronouncements, Hon'ble Apex Court has either stated or explained when trial commenced in civil suit. In the case of Kailash Vs. Nankhu and ors. reported in (2005) 4 SCC 480, it has been stated as under :-
"'Trial' of election petition, when it commences?
13. At this point the question arises : When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word 'trial'."
(emphasis supplied) 12.1. At this stage it is also profitable to refer and rely upon the Full Page 7 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined Bench decision of the Hon'ble Apex Court in the case of Union of India Vs. Major General Madan Lal Yadav (Rtd.) reported in (1996) 4 SCC 127, wherein it has been held in Para 13 to 19, which reads as under:-
"13. The words "trial commences" employed in Section 123 [2] shall be required to be understood in the light of the scheme of the Act and the Rules. The question is as to when the trial is said to commence? The word 'trial' according to Collins English Dictionary means:
"the act or an instance of trying or proving; test or experiment... Law. a. the judicial examination of the issues in a civil or criminal cause by a competent tribunal and the determination of these issues in accordance with the law of the land. b. the determination of an accused person's guilt or innocence after hearing evidence for the prosecution and nor the accused and the judicial examination of the issues involved".
14. According to Ballentine's Law Dictionary [2nd ed.] 'trial' means:
"an examination before a competent tribunal according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such Page 8 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined issue. When a court hears and determines any issue of fact or law for the purpose of determining the right of the parties, it may be considered a trial"
15. In Block's Law Dictionary [Sixth Edition] Centennial Edition, the word 'trial' is defined thus:
"A judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction... A judicial examination, in accordance with law of the land, of a cause, either civil or Criminal, of the issues between the parties, whether of law or facts, before a court that has proper jurisdiction".
16. In Webster's Comprehensive Dictionary International Edition, at page 1339, the word 'trial' is defined thus:
"....The examination, before a tribunal having assigned jurisdiction, of the facts or law involved in ail issue in order to determine that issue. A former method of determining guilt or innocence by subjecting the accused to physical tests of endurance, as by ordeal or by combat with his accuser... In the process of being tried or tested... Made or performed Page 9 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined in the course of trying or testing...".
17. The word `commence' is defined in Collins English Dictionary to mean "to start or begin; come or cause to come into being, operation etc." In Black's Law Dictionary it is defined to mean:
"to initiate by performing the first act or step. To begin, institute or start.
Civil action in most jurisdictions is commenced by filing a complaint with the court....
Criminal action is commenced within statute of limitations at time preliminary complaint or information is filed with magistrate in good faith and a warrant issued thereon... A criminal prosecution is "commenced" [1] when information is laid before magistrate charging commission of crime, and a warrant of arrest is issued, or [2] when grand jury has returned an indictment".
18. In the "Words and Phrases" [Permanent Edition] Vol.42A, at page 171, under the head "Commencement", it is stated that ".4 'trial' commences at least from the time when work of empanelling of a jury begins".
19. It would, therefore, be clear that trial Page 10 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto . The trial commences with performance of the first act or steps necessary or essential to proceed with trial."
(emphasis supplied) 12.2. Thus, in view of the aforesaid position of law, according to my view, the trial in the case on hand already commenced as oral evidence of the plaintiff is filed having made available on record of the suit.
12.3. As per the decision Ashok Kumar Kalra (supra), wherein, the Full Bench of the Hon'ble Apex Court, after analyzing the provisions of Order 8, Rule 6-A of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), held thus:
"21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation Page 11 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:
(i) Period of delay.
(ii) Prescribed limitation period for the cause of action pleaded.
(iii) Reason for the delay.
(iv) Defendant's assertion of his right.
(v) Similarity of cause of action between the main suit and the counterclaim.
(vi) Cost of fresh litigation.
(vii) Injustice and abuse of process.
(viii) Prejudice to the opposite party.
(ix) And facts and circumstances of each case.
(x) In any case, not after framing of the issues."
56. The above discussion lends support to the conclusion that even though Rule 6-A permits Page 12 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined the filing of a counterclaim after the written statement, the court has the discretion to refuse such filing if it is done at a highly belated stage. However, in my considered opinion, to ensure speedy disposal of suits, propriety requires that such discretion should only be exercised till the framing of issues for trial. Allowing counterclaims beyond this stage would not only prolong the trial, but also prejudice the rights that may get vested with the plaintiff over the course of time."
(emphasis supplied)
13. In view of the aforesaid pronouncement of law by the Full Bench of the Hon'ble Apex Court, the issue germane in the matter is no longer remains res integra, inasmuch as it is now well-settled legal position of law that after framing of issues and when trial commenced, counterclaim cannot be permitted to be filed by the defendant.
14. Having reached to the aforesaid conclusion, the order impugned requires to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India, to the extent permitting the defendant to file counterclaim, inasmuch as impugned order not only bad in law, but passed exceeding its jurisdiction, also not in Page 13 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined consonance with position of law stand as on date. It is well settled law that when such would be the impugned order, to keep the Court within its bound, this Court requires to exercise its supervisory power vested in Article 227 of the Constitution of India. [See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)].
15. As far as permitting the defendant to file written statement is concerned, there is no vehemence on the part of learned Senior Advocate Mr. Nanavati appearing for the plaintiff, inasmuch as it is otherwise a discretionary order passed by the Trial Court allowing the defendant to file its written statement beyond period of limitation so prescribed under Order 8, Rule 1 of the CPC. This Court also would not like to interfere with such discretionary order passed by the Trial Court permitting the defendant to file its written statement. CONCLUSION
16. In view of foregoing reasons, the impugned common order dated 15/12/2014 passed by the 5th Additional Senior Civil Page 14 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025 NEUTRAL CITATION C/SCA/5229/2015 JUDGMENT DATED: 08/10/2025 undefined Judge, Bhavnagar below Exhibit 33, requires to be modified to the extent permitting the defendant to file its counterclaim.
17. Consequently, the impugned application filed below Exhibit 33 by the defendant in the aforementioned suit is partly allowed, whereby, the defendant is permitted to file its written statement only but not allowed to file its counterclaim.
18. In view of the foregoing conclusion, the present writ application is partly allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to costs. Now, trial Court shall expedite hearing of the suit.
(MAULIK J.SHELAT,J) NILESH Page 15 of 15 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 02:34:27 IST 2025