Bombay High Court
Dr. Harshawardhan S/O. Shyamrao ... vs Bhagwan S/O Sampat Nitnaware, ... on 12 June, 2017
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1315 OF 2016
Dr. Harshawardhan s/o Shyamrao Wankhede,
Aged about 57 years, Occ. Medical Practitioner,
R/o Tarsa Road, Kanhan,
Tah. Parshioni, District Nagpur
(Original Defendant) .... Petitioner
-- Versus -
Bhagwan s/o Sampat Nitnaware,
Aged about 60 years, Occ. Civil Contractor,
R/o J.N. Road, Kandri-Kanhan,
Tah. Parshioni, District Nagpur.
(Original Plaintiff) .... Respondent
Shri Laique Hussain, Advocate for the Petitioner.
Mrs. B.M. Kasare, Adv. h/f Shri N.S. Khandewale, Adv. for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : JUNE 12, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by
consent of the learned Counsel for the parties.
02] This petition is directed against the order below
Exh.28 passed on 24/03/2014 in R.C.S. No.89/2012 by the
learned Joint Civil Judge, Junior Division, Parshioni.
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03] Heard Shri Laique Hussain, learned Counsel for
petitioner-original defendant and Mrs. B.M. Kasare, learned
Counsel for respondent-original plaintiff.
04] The facts giving rise to the petition may be stated in
brief as under :
i. Respondent filed R.C.S. No.682/2000 before the Civil
Judge Senior Division, Nagpur for recovery of money.
After enhancement of pecuniary jurisdiction, suit was
transferred to the Court of Civil Judge Junior Division,
Parshioni.
ii. During pendency of suit, defendant moved an
application [Exh.28] for permission to file counter
claim. Vide impugned order, trial court declined the
permission to file counter claim. Being aggrieved
thereof, defendant had invoked extraordinary
jurisdiction of this Court by present petition.
05] Learned Counsel for petitioner-defendant submitted
that complaint was filed before the District Consumer Redressal
Forum. Said complaint was dismissed on 12/10/2004 observing
that the subject matter of complaint and civil suit is same.
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Therefore, after dismissal of complaint, defendant moved an
application for permission to file counter claim, which was very
much in time. Learned Counsel placed reliance on the decision
of the Hon'ble Apex Court in P. Sarathy vs. State Bank of
India - (AIR 2000 SC 2023) and submitted that under Section
14 of the Limitation Act, time spent in prosecuting the dispute
before the District Consumer Redressal Forum has to be
excluded and an opportunity be granted to defendant to set up
his counter claim.
06] Per contra, learned Counsel for respondent-plaintiff
submits that defendant issued notice on 07/08/2000 and in the
said notice, he made a grievance of excess payment. She
submits that permission to file counter claim was sought after six
years and trial court relying upon Article 26 of the Limitation Act
has rightly rejected the application.
07] The moot question in the present petition is whether
cause of action to file counter claim arose on 07/08/2000 i.e.
date of notice or on 12/10/2004 i.e. the date of passing order by
District Consumer Redressal Forum. With the assistance of the
learned Counsel for the parties, this Court has perused copy of
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notice issued by defendant on 07/08/2000. In this notice,
defendant had made a grievance of excess payment. He,
thereafter, filed a complaint before the District Consumer
Redressal Forum. Application [Exh.28] was moved on 03/03/2006
i.e. after lapse of six years from the date of notice issued to the
plaintiff.
08] Article 26 of the Limitation Act prescribes three years
period of limitation for the money payable to the plaintiff found
to be due from defendant to the plaintiff. In this situation,
provisions of Section 14 of the Limitation Act would not come to
the rescue of defendant as a legal right has accrued to the
plaintiff under Article 26 of the Limitation Act. The trial court has
given elaborate reasonings for rejecting the application for
permission to file counter claim. No jurisdictional error has been
noticed by this Court. Hence, writ petition deserves to be
dismissed.
ORDER
i. Writ Petition No.1315/2016 is dismissed.
ii. Rule is discharged with no order as to costs.
*sdw (Kum. Indira Jain, J.)
