Sunil Sudhakar Kharote vs Chintaman Pandurang Borde And ...
2022 Latest Caselaw 9342 Bom

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


                   WRIT PETITION NO. 305      OF 2021


PETITIONER :                 Sunil Sudhakar Kharote, Aged about 48
Orig. Defendant              years, Occ. Business, Shastri Nagar, Akola,
                             Tq. and Dist. Akola.

                               -VERSUS-

RESPONDENTS :           1]   Chintaman Pandurang Borde, Aged about 78
Orig. Plaintiffs             years, Occ. Labourer, R/o Chaure Plot, Near
                             Hanuman Temple, Shrawagi Plots, Akola, Tq.
                             And Dist. Akola.

                        2]   Raibhan Pandurang Borde, [Since Deceased
                             through L.Rs.

                        a]   Smt. Latabai Raibhan Borde, Adult, Occ.
                             Household,

                        b]   Sarjerao Raibhan Borde, Adult, Occ. Private
                             Service,

                        c]   Sandeep Raibhan Borde, Adult, Occ. Private
                             Service,

                             Nos.[a] to [c] R/o Chaware Plot Behind Lady
                             Harding Hospital, Akola, Tq. And Dist. Akola.

Deleted as per order    d]   Sau.Kalpana Shamsundar Mehata
dtd.04.08.22.
                        e]   Sau.Kavita Manishkumar Kothari

                             Note : Respondent No. 2[d] and [e] are not
                             in occupation of the premises and they are
                             married and residing in their husband's
                             house. Notice is therefore not necessary to



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                                                be given to them. They are added as only
                                                legal heirs.

---------------------------------------------------------------------------------------------------------------------------
                         Mr. J.B.Gandhi, counsel for the petitioner.
                      Mr. U.J.Deshpande, counsel for the respondents.
---------------------------------------------------------------------------------------------------------------------------



                                                 CORAM : MANISH PITALE, J.

                                                 DATE            : 16.09.2022

ORAL JUDGMENT




            Heard.




2.          Rule.        Rule made returnable forthwith. Heard finally with the

consent of the learned counsel appearing for the rival parties.

3. By this petition, the petitioner, who is the original plaintiff, has

challenged order dated 15/01/2020, passed by the Court below, whereby

an application at Exhibit-35 filed by the petitioner raising objection to filing

of counter claim by the respondents, has been rejected.

4. The petitioner-plaintiff in the present case has filed a suit for

permanent injunction against the respondents-defendants. The suit was

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filed on 21/08/2015 and the written statement therein was filed on behalf

of the defendants on 23/02/2016. Issues were framed on 10/06/2016.

During the pendency of the suit, the original defendant No.2 died and

consequently his legal representatives were brought on record on

04/10/2017. The legal representatives adopted the written statement filed

on behalf of the original defendant No.2.

5. Thereafter, on 10/06/2019, the respondent Nos.1 and 2, i.e. the

original defendant No.1 and the legal representatives of defendant No.2

filed a counter claim. The record shows that in the original written

statement itself a plea regarding adverse possession was taken on behalf of

the defendants as a shield. By the counter claim, the respondents sought to

raise the same plea by way of sword, in view of the position of law clarified

by the Hon'ble Supreme Court in that regard.

6. The petitioner filed the aforesaid application at Exhibit-35, raising

objection to the counter claim being taken on record, on the basis of that as

per settled law and particularly in the light of judgment of the Hon'ble

Supreme Court in the case of Ashok Kumar Kalra v. Wing Cdr. Surendra

Agnihotri and others, reported in (2020) 2 SCC 394, counter claim could

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not have been permitted to be filed after framing of issues. But, by the

impugned order, the Court below rejected the said application raising the

objection.

7. Aggrieved by the same, the petitioner filed the present petition,

wherein on 10/02/2022, this Court issued notice regarding the specific

submission made on behalf of the petitioner. The respondents entered

appearance through counsel and the writ petition was taken up for final

disposal.

8. Mr. J. B. Gandhi, learned counsel for the petitioner placed reliance

on the judgment of the Hon'ble Supreme Court in the case of Ashok Kumar

Kalra v. Wing Cdr. Surendra Agnihotri (supra) and submitted that the

majority view of two Hon'ble Judges in the aforesaid judgment

categorically laid down that the outer limit for filing counter claim stood

pegged till issues were framed in a suit. By submitting that admittedly

issues were framed in the present case on 10/06/2016, it was emphasized

that the counter claim filed on 10/06/2019, on behalf of the respondents,

could not have been taken on record.

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9. On the other hand, Mr. U. J. Deshpande, learned counsel appearing

for the respondents, submitted that since the legal representatives of the

respondent No.2 were brought on record on 04/10/2017, much after the

issues were framed, the aforesaid position of law would not adversely

affect the right of the respondents to file the counter claim. It was

submitted that the plea being taken in the counter claim was not

inconsistent with the stand taken in the original written statement filed by

the defendants and that in any case independent right accrued to the legal

representatives of the respondent No.2, in order to pursue the counter

claim. Reliance was placed on judgment of this Court in the case of

Nilkanth s/o Pandurang Wath and others v. Amarkanth s/o Pandurang

Wath and others, reported in 2016 (6) Mh.L.J. 46.

10. This Court has considered the material on record and appreciated

the submissions made on behalf of the rival parties. The dates of filing of

the suit, written statement and framing of issues is not disputed in the

present case. The issues were framed on 10/06/2016 and the respondents

filed the counter claim much later on 10/06/2019. The Hon'ble Supreme

Court in the aforesaid judgment in the case of Ashok Kumar Kalra v. Wing

Cdr. Surendra Agnihotri (supra), as per the majority view held as follows:

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"20. We sum up our findings, that Order VIII Rule 6A of the 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 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."

11. In view of the above, it is clear that the outer limit for filing counter

claim, as per the position of law laid down by the Hon'ble Supreme Court,

is till framing of issues. Reliance placed on judgment of Nilkanth s/o

Pandurang Wath and others v. Amarkanth s/o Pandurang Wath and others

(supra) on behalf of the respondents is misplaced. In the said judgment, all

that is laid down is that since the legal representatives of the original

defendant entered into the shoes of the original defendant, no inconsistent

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plea can be taken by such legal representatives, although the said position

would be different when a counter claim is sought to be placed on record

and it is specifically observed that if the legal representatives can bring an

independent action on a specific plea, the same can also be sought by filing

a counter claim.

12. In the present case, admittedly, on 23/02/2016, respondent No.1,

i.e. the defendant No.1 had jointly filed written statement along with the

other defendants, including the deceased defendant No.2. The legal

representatives of the deceased respondent No.2 (original defendant No.2)

upon being brought on record, filed a pursis adopting the written statement

already on record. The issues were admittedly framed on 10/06/2016.

Considering the fact that the legal representatives of respondent No.2

(defendant No.2) merely entered into the shoes of the said defendant, it

cannot lie in their mouth that the position of law as clarified herein above

would not apply to them. In any case, the counter claim has been filed on

behalf of the original defendant No.1 also, who had already filed written

statement on 23/02/2016.

13. Looked at from any angle, it cannot be said that the impugned

order is sustainable. The objection raised on behalf of the petitioner was

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based on the correct position of law, which the Court below failed to

appreciate.

14. In view of the above, the writ petition is allowed. The impugned

order is quashed and set aside. The application at Exhibit-35 is allowed

and consequently it is held that the counter claim filed on behalf of the

respondents shall not be taken on record.

15. Rule is made absolute in above terms. No order as to costs.

JUDGE

Signed By:GHANSHYAM S KHUNTE

Signing Date:19.09.2022 11:17

KHUNTE