Shri. Sharad S/O. Balaji Tidke vs Shri. Pravin S/O. Sharad Tidke And ...
2016 Latest Caselaw 4825 Bom

                                                   1                                jg.wp6753.15.odt




                                                                                             
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              : NAGPUR BENCH : NAGPUR.




                                                                     
                               WRIT PETITION NO. 6753 OF 2015

    Shri Sharad S/o Balaji Tidke 
    Aged about 72 years, Occ. Cultivation, 




                                                                    
    R/o Azad Chowk, Ward No. 6, Bhiwapur, 
    Tahsil Bhiwapur, Dist. Nagpur.                                                      ... Petitioner
     
                      //   VERSUS  // 




                                                      
    (1) Shri Pravin S/o Sharad Tidke,
                                  
          Aged about 39 years, Occ. - Labour, 
          R/o Bhiwapur, Tahsil Bhiwapur, 
          Dist. Nagpur.  
                                 
    (2) Shri Mangesh S/o Sharad Tidke,
          Aged about 28 years, Occ. - Cultivator, 
          R/o Bhiwapur, Tahsil Bhiwapur, 
          Dist. Nagpur.                                                                ... Respondents
      


    -----------------------------------------------------------------------------------------------------
   



    Shri H. N. Bhondge, Advocate for the petitioner 
    Shri P. A. Markandeywar, Advocate for the respondent no. 1
    None for the respondent no. 2
    -----------------------------------------------------------------------------------------------------





                                                      CORAM :  PRASANNA B. VARALE, J.

                                                       DATE    :  23-8-2016.
    ORAL ORDER





                     Rule. 

2. Heard finally with consent of learned counsel appearing for

the parties.

3. The petitioner is before this Court challenging the order

passed by the learned Civil Judge Junior Division, Bhiwapur dated

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4-11-2015 thereby rejecting the application for seeking permission to file

counter claim/counter suit.

4. Brief facts giving rise to the present petition can be

summarized as follow.

The respondent no. 1 is the plaintiff who instituted Regular Civil

Suit No. 128/2008 in the Court of Civil Judge Junior Division, Bhiwapur

against defendant Mangesh Tidke who is respondent no. 2 in the present

petition. In the suit instituted by the respondent no. 1/plaintiff, it was

claim for partition in the property situated at Mauza Bhiwapur in Survey

No. 78, Gat No. 17 to the extent of 1 Hector 21 R. The plaintiff

submitted that plaintiff and defendant Mangesh are the real brothers

and the said property was owned and possessed by their mother Nalubai.

It was submitted that Nalubai purchased that property from her stridhan.

It is submitted in the suit that after the death of Nalubai, the plaintiff and

defendant Mangesh were the legal heirs of Nalubai and successors in

the property. It was submitted in the suit that the defendant who was

residing with father was cultivating agriculture field and was receiving all

the monetary benefits. It was submitted that when the plaintiff made an

attempt to enter in the agriculture field, the defendant prevented the

plaintiff and also denied the request for share in income received from

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the agriculture land. As there was dispute between the parties on

account of share, the plaintiff orally claimed the partition and defendant

denied the same, as such, notice was issued and the defendant purposely

avoided to accept the notice. Thus the plaintiff left with no choice to

approach the Court for partition in the property. The plaint was

subsequently amended by addition of the parties and raising the

additional grounds. The petitioner was added as the defendant no. 2 to

the suit. The petitioner then submitted his written statement on

14-9-2015. The contents raised in the suit at the instance of the plaintiff

were denied and the additional submissions were stated in the written

statement. The petitioner then submitted an application seeking

permission to file counter claim/counter suit on 30-9-2015. The

application was opposed by filing say at the instance of the respondent

no. 1/original plaintiff. The learned Civil Judge Junior Division,

Bhiwapur, on considering the material placed on record and also on

hearing the parties, rejected the application. Being aggrieved by the said

order, the petitioner is before this Court.

5. Shri Bhondge, learned counsel appearing for the petitioner

vehemently submitted that though the respondent no. 1 initially filed

Regular Civil Suit No. 128/2008 for partition and separate possession,

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the same was dismissed. Being aggrieved, the appeal was presented.

The learned District Judge-11, Nagpur allowed the appeal and the

judgment and decree passed on 8-11-2012 by the learned Civil Judge

Junior Division, Bhiwapur was set aside and the matter was remitted to

the learned trial Court for deciding the same after affording opportunity

to the present petitioner to file written statement and the respective

parties were permitted to adduce evidence. The learned trial Court was

directed to dispose of the suit as early as possible and by 31 st October,

2015.

6. The learned counsel for the petitioner vehemently submitted

that the learned Civil Judge Junior Division ought not to have rejected

the application on the ground that it was beyond the period of limitation.

Learned counsel for the petitioner further submitted that the petitioner

received knowledge of the fact that Nalubai executed will deed

subsequent to filing the written statement. It is further submitted by the

learned counsel for the petitioner that Nalubai executed will deed on

12-9-2002. It was submitted that Nalubai was suffering from a serious

ailment like cancer and as Nalubai lost hope of life, she executed will

deed in presence of two witnesses. It is submitted that as the property

was purchased by the petitioner himself from his own income but the

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same was purchased in name of Smt. Nalubai. Nalubai under her will

bequeathed the said property to the petitioner and he is the sole owner of

the property. Shri Bhondge, learned counsel submitted that no prejudice

would cause to the respondents if the petitioner would have been

allowed to submit the counter claim as the respondents could have

certainly filed their counter submissions or written statement to the

counter claim.

7. Shri Markandeywar, learned counsel for the respondent

no. 1 supports the order impugned in the petition. Though at the first

blush submissions of Shri Bhondge, learned counsel for the petitioner

looks attractive, on perusal of the material placed on record, I am unable

to accept the submissions of learned counsel for the petitioner. If the

sequences and events are considered, it clearly show that the petitioner

filed his written statement on 14-9-2015 and submitted an application for

permission to file counter claim or counter suit on 30-9-2015. Though a

ground is raised to submit that the application ought to have been

allowed on the backdrop of the fact that the petitioner received the

knowledge of will deed executed by Smt. Nalubai subsequent to filing the

written statement, perusal of the written statement clearly shows that in

the written statement, in the additional submission itself, a statement is

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made that Smt. Nalubai was ailing with cancer and she lost hope of her

life and she executed will deed on 12-9-2002 upon the property for the

petitioner. If this was the statement in the written statement sworn in

by the petitioner on 14-9-2015, the petitioner cannot take somersault and

submit before this Court that fact of executing the will deed by Nalubai

came in the knowledge of the petitioner subsequent to filing of written

statement.

8. Though Shri Bhondge, learned counsel for the petitioner

placed reliance on the judgment of the Hon'ble Apex Court in the case of

Shanti Rani Das Dewanjee (Smt.) Vs. Diesh Chandra Day (dead) By

LRS. reported in (1997) 8 SCC 174 and though there cannot be any

dispute on the proposition of law as reflected in the judgment, the

judgment is of no help to the learned counsel for the petitioner. The

Apex Court observed that right to file counter claim being referable to

date of accrual of cause of action, if the cause of action had arisen before

or after the filing of the suit, and such cause of action continued up to the

date of filing written statement or extended date of filing written

statement, such counter claim can be filed even after filing the written

statement. As stated above, in the present matter, there is no question of

any extended date of filing written statement. The written statement was

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filed on 14-9-2015. It was the submission of the petitioner himself that

the factum of will deed executed by Smt. Nalubai came to his knowledge

subsequent to filing of written statement and as such, it was a cause for

the petitioner to file counter claim and this statement is not in

consonance with the record as observed by this Court now. Thus, the

petitioner who was aware of the fact that Nalubai executed will deed in

her lifetime and this fact was reflected in the written statement dated

14-9-2015, the petitioner could not have taken a specious plea that he

could have filed the counter claim even subsequent to filing of the

written statement. In view of these facts, the submissions of learned

counsel for the petitioner that no prejudice would be caused to the

respondents is of no consequences. No error is committed by the learned

Civil Judge Junior Division in rejecting the application by order dated

4-11-2015. The petition thus, being meritless, deserves to be rejected

and the same is, accordingly, rejected.

JUDGE

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