Keru Lena Salve vs Kacharu Lena Salve And Others
2016 Latest Caselaw 1648 Bom

                                             1                       WP-602.16.doc


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                             BENCH AT AURANGABAD

                           WRIT PETITION NO. 602 OF 2016




                                                       
              Keru s/o Lena Salve,
              Age 65 years, occup. Agril.,
              R/o Deogaon, Tq. Newasa,




                                                      
              Dist. Ahmednagar                   .. Petitioner


                      versus




                                        
     01.      Kacharu Lena Salve,
              Age 70 years, occup. Agril.
              r/o Deogaon, Tq. Newasa,
                             
              Dist. Ahmednagar

     02.      Babanbai Madhukar Vanjare,
                            
              Age major, occup. Agriculture,
              r/o Bhansahiwara, Tq. Newasa,
              Dist. Ahmednagar

     03.      Ramesh Kisan Kedare,
      

              Age major, occup. Agriculture,
              r/o P.S. Colony, White B.S.T.
   



              Building No. 3, Room No. 28,
              Ghatkopar (West)

     04.      Deogaon Vividh Karyakari Seva
              Sahakari Society Ltd., Deogaon,





              Tq. Newasa, Dist. Ahmednagar
              through its Secretary

     05.      Sushila Manohar Hire,
              Age 60 years occup. Household,
              r/o Kannamwar Nagar,





              Building no. 189, in front of Court,
              Vikroli, Mumbai

     06.      Ranjana Anand Pujari,
              Age 58 years, occup. Household,
              r/o Asllapa Vijel, N.S. road,
              Ghatkopar, Mumbai                         .. Respondents
                           --
              Mr. P. S. Pawar, Advocate for petitioner
              Mr. H. D. Deshmukh, Advocate for respondents




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                                                   2                       WP-602.16.doc


                                      CORAM :          SUNIL P. DESHMUKH, J.

                                      DATE :           20TH APRIL, 2016




                                                            
     ORAL JUDGMENT:


     1.       Rule.      Rule made returnable forthwith.                Heard learned

counsel for parties finally, by consent.

2. Petitioner who is original defendant no.1 is aggrieved by

order on Exhibit 103 in regular civil suit no. 264 of 2010 passed by

Civil Judge, Junior ig Division, Newasa, dated 09-06-2015

whereunder petitioner's application seeking to file counterclaim

stands rejected.

3. Learned counsel for petitioner submits that information in

respect of a few properties which have been already referred to in

the written statement has now been available with some certainty

as documents relating to the same could be secured by him and

as such said information with details could be brought on record

and as such, application Exhibit-103 had been moved seeking

counterclaim. He submits that it is not the case that it has no basis

whatsoever in the written statement. In the circumstances, the

court ought to have viewed the matter accordingly and eschewed

pedantic approach.

4. Learned counsel for respondent no.1-original plaintiff and

other respondents Mr. Deshmukh, however, contends that the

application had been moved by present petitioner with a view to

3 WP-602.16.doc

avoid early decision in the suit which has been pending since 2010.

He invites attention to that the written statement had been filed on

05-10-2010. Thereafter the plaintiff's witnesses were examined

and were cross examined by defendants. Defendant no. 1 had also

been examined and cross examined and even his witnesses had

also been examined and cross examined. Thereafter, four more

dates intervened and it is thereafter that the application had been

moved.

5. Learned

counsel for respondents further submits that

counterclaim is a facility available as provided under the rules in the

Code of Civil Procedure, 1908 and cannot be lodged as a matter of

right. A facility will have to be enjoyed only in the way as

prescribed under the rules. Application filed by present petitioner is

not in compliance of rules, particularly rule 6A under Order VIII of

the Code of Civil Procedure. Although it is the contention of the

petitioner that there is basis seeking counterclaim in the written

statement, nothing had forbidden him from seeking counterclaim

claim at the time of lodging written statement. Getting information

with certainty is merely a subterfuge to procrastinate the

proceedings which have progressed to final stage.

6. It appears that the trial court has taken stock of all the

aspects and passed the impugned order. The order cannot be

faulted with. Having regard to relevant rules, particularly rule 6A,

4 WP-602.16.doc

of the Code of Civil Procedure and the conduct of the petitioner and

taking into account the reasons which have weighed with the trial

court while passing the order as reflected in paragraphs 12 and 13

of the same, I do not consider that the present case is fit enough

to consider under discretionary powers of this court.

8. Writ petition as such is rejected. This order, however, does

not preclude petitioner from taking recourse to remedy in respect of

his claims as would be available in law.

9.

Rule stands discharged.

SUNIL P. DESHMUKH,

JUDGE

pnd