Bombay High Court
Arvind S/O Govindrao Meshram ... vs Rajendra Govindrao Meshram And ... on 24 October, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1719 OF 2015
1] Arvind s/o Govindrao Meshram (Died)
through his legal heirs :
i. Smt. Kalpana wd/o Arvind Meshram,
Aged 53 years, Occupation-Household.
ii. Amit s/o Arvind Meshram,
Aged 35 years, Occupation-Service.
iii. Sumit s/o Arvind Meshram,
Aged 33 years, Occupation-Private Service.
iv. Manish s/o Arvind Meshram,
Aged 29 years, Occupation-Service,
All resident of Plot No.46/7,
Ujwalnagar, Nagpur. .. Petitioners
(Original plaintiffs)
.. Versus..
1] Rajendra Govindrao Meshram,
Aged Major.
2] Asha Rajendra Meshram,
Aged Major,
Both Resident of Plot No.20,
Bhartiya Gruha Nirman
Sahakari Sanstha, Beltarodi Road,
Behind Hotel Pride, Manish Nagar,
Somalwada, Nagpur-440 005.
3] Munneshwar Govindrao Meshram,
Resident of Plot No.27,
Harihar Nagar, Opp. Global Logic
I.T. Park Besa, Nagpur-440 034.
4] Kiran Govindrao Meshram,
Aged Major,
Resident of Anant Nagar,
Behind Dr. Nana Meshram Clinic,
Sitabuldi, Nagpur-12.
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5] Sharad Govindrao Meshram,
Aged Major,
Resident of Plot No.12,
Panchatara Society, Beltarodi Road,
Behind Hotel Pride, Manish Nagar,
Somalwada, Nagpur.
6] Narendra Govindrao Meshram,
Aged Major,
Resident of Plot No.20,
Bhartiya Gruha Nirman Sahakari
Sanstha, Beltarodi Road,
Behind Hotel Pride, Manish Nagar,
Somalwada, Nagpur-440 005.
7] Vishakha Krishna Patil,
Aged Major,
Resident of Plot No.4,
Behind Tule Flour Mill,
Prerna Vidya Mandir,
New Amar Nagar, Chikhli Road,
Manewada Ring Road, Nagpur.
8] Shri Krupa Infrastructure Pvt. Ltd.
A Registered Company under the
Companies Act, 1956
Having its Registered Office at
Plot No.200, Umashankar Apartment,
Gokulpeth, Nagpur.
Through its Directors :
a) Shweta w/o Manoj Daware,
b) Manoj Nemraj Daware,
Resident of Plot No.200,
Umashankar Apartment,
Gokulpeth, Nagpur.
9] Shri Ashok Anandraoji Dhapodkar,
Aged Major,
Resident of C/o. Anil H. Gulhane,
Advocate, 84, Law Kush Nagar,
Manewada Road, Nagpur. .. Respondents
(Original defendants)
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Shri D.V. Siras, Advocate for Petitioners,
Shri R.J. Mirza, Advocate for Respondent no.1,
Ms. Poonam Moon, Advocate for Respondent no.2.
..........
CORAM : A.S. CHANDURKAR, J.
DATED : OCTOBER 24, 2016.
ORAL JUDGMENT
1] As notice for final disposal has been served on the parties,
the learned counsel for the petitioners and the respondent no.1 have
been heard by issuing Rule making the same returnable forthwith.
2] The petitioners, who are legal heirs of the original plaintiff,
are aggrieved by the order dated 21.1.2015 passed by the trial court
below Exh.53 allowing the application moved by the defendant no.1 for
amending his written statement and incorporating the counter claim.
3] The original plaintiff had filed suit for declaration, partition
and separate possession of property bearing Khasra No.46/1 in which he
had 1/7th share. The suit was opposed by the defendants by filing their
written statement. The defendant no.1, thereafter, moved an application
on 10.7.2014 for amending the written statement and seeking to
incorporate the counter claim. This application was opposed by the
original plaintiff and by the impugned order, the trial court allowed the
same, subject to costs of Rs.1,500/-.
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4] Shri Siras, learned counsel for the petitioners, submitted that
the trial court was not justified in allowing the amendment. According
to him, the amendment, as sought, was beyond the scope of the original
defence taken in the written statement. He further submitted that under
the provisions of Order VIII, Rule 6-A (1) of the Code of Civil Procedure,
1908 (for short 'Code'), the counter-claim could not have been raised
after filing of the written statement. According to him, the provisions of
Order VIII, Rule 6-A (1) of the Code did not permit such a course to be
followed and, therefore, the trial court was not justified in allowing the
application. He further submitted that a time barred claim was sought to
be agitated in the counter claim. He placed reliance upon the judgment
of the Hon'ble Supreme Court in the case of Kunwar Pal Singh (Dead)
By LRS. .vs. State of U.P. and others, reported in (2007) 5 SCC 85 in
that regard.
5] Shri Mirza, learned counsel for the respondent no.1 supported
the impugned order. According to him, the trial court was within its
jurisdiction in permitting the defendant no.1 to raise the counter claim.
According to him, the legal position in this regard stands settled in view
of the judgment of the Hon'ble Supreme Court in the case of Ramesh
Chand Ardawatiya .vs. Anil Panjwani, reported in (2003) 7 SCC 350.
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6] I have heard the respective counsel for the parties at length
and perused the documents filed on record.
7] It is not in dispute that the application for amendment below
Exh.53 has been moved prior to framing of the issues. The trial court has
found it necessary to grant the amendment on the ground that it was
necessary for deciding the controversy in question.
8] As regards the contention that the permission to file counter
claim could not have been granted after filing of the written statement is
concerned, said question has been considered by the Hon'ble Supreme
Court in the case of Ramesh Chand Ardawatiya (supra). It has been
held in para 28 of the said judgment that such course could be followed
and it would be subject to the discretion in that regard being exercised by
the trial court.
9] In that view of the matter, it cannot be said that the trial court
committed any error in permitting the defendant no.1 to raise a counter
claim. However, at the same time, the trial court has observed in
paragraph 13 of the impugned order that the aspect of limitation was a
mixed question of facts and law and hence could not be considered at
that stage. It is well settled that if the question of limitation arises at the
stage of considering an application for grant of amendment, normally
such amendment can be permitted to be raised, subject to framing an
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issue of limitation. To that extent, directions need to be issued to the
trial court to frame an issue on the aspect of limitation in the facts of the
case.
10] In view of aforesaid discussion, I do not find it necessary to
interfere with the impugned order. The original plaintiff would be at
liberty to respond to the counter claim and based on such pleadings, the
trial court is free to frame an issue of limitation and decide the same in
accordance with law.
11] The writ petition is disposed of in aforesaid terms. No costs.
JUDGE
Gulande, PA
