Bombay High Court
Ashok Kumar Madan Gopal Jain Alias ... vs Chandu Naturam Dave And Anr on 9 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 7539 OF 2022
Ashok Kumar Madan Gopal Jain
Alias Ashok Jain ..Petitioner
Versus
Chandu Naturam Dave & Anr. ..Respondents
__________
Mr. U.S.R. Singh a/w. Suhas Rohile for Petitioner.
Mr. Anil D'Souza a/w. Valentine Mascarenhas a/w. Ernest Tuscano
for Respondent Nos.1 and 2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 9 MARCH 2023
PC :
1. The petitioner has challenged the order dated
06/01/2022 passed by learned Civil Judge, S.D., Vasai rejecting
the application at Exhibit 11 in Special Civil Suit No.203 of 2019.
The said application was preferred by the original plaintiff who is
the petitioner herein for exclusion of the defendants' (respondents
herein) counter claim under O.8, Rule 6(C) of the Code of Civil
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE Procedure, 1908. The plaintiff's alternate prayer was for rejection
GOKHALE Date:
2023.03.13
15:01:12
+0530
Gokhale
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of the counter claim under O.7, Rule 11 of the C.P.C.
2. Heard Shri. Singh, learned counsel for the petitioner and
Shri. Anil D'Souza for the Respondent Nos.1 and 2.
3. The petitioner-plaintiff had filed a Special Civil Suit
No.203 of 2019 before that Court against the defendants for
declaration and cancellation of the sale agreement dated
07/04/2014, executed between the plaintiff and the defendants;
registered with the office of the Sub Registrar, Vasai-3, in respect of
flat No.B-303 in building No.2 known as Global Heights at village
Manikpur, Taluka Vasai, District Palghar. The prayer was for
cancellation of that particular sale deed. The sale agreement was
dated 07/04/2014. The plaintiff had agreed to sale that particular
flat to the respondents. But, according to the plaintiff, the balance
amount was not paid by the defendants. While this suit was
pending the defendants i.e. the respondent Nos.1 and 2 herein
filed a counter claim / set off claim for recovery of Rs.58,34,000/-.
It was the case of the respondents herein that the plaintiff had
agreed to give supervision charges and thus the amount of
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Rs.58,34,000/- were due and payable by the petitioner herein. The
application was made by the petitioner herein before the trial
Court for exclusion of the defendants/respondents' counter claim,
as mentioned earlier.
4. Learned Trial Judge held that, there was similarity of
causes of action between the main suit and the counter claim. The
exclusion of the counter claim would cause prejudice to the
defendants, whereas, no prejudice would be caused to the plaintiff
if the counter claim was heard and disposed of with the suit. A
plea of limitation could be decided at the trial being the mixed
question of law and fact. He also observed that the counter claim
was not undervalued. On these reasonings the application
preferred by the original plaintiff-petitioner herein was rejected.
5. Learned counsel for the petitioner submitted that, there
was absolutely no connection between the two causes of action.
The M.O.U. which the respondents herein are referring to was
from the year 2012 and it was only an oral agreement. There was
no M.O.U. at all. It has nothing to do with the sale transaction
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dated 07/04/2014. Therefore, the counter claim could not have
been entertained by the Trial Court. He particularly relied on the
Judgment of a Single Judge of this Court in the case of Sahebrao
Vithoba Pawar Vs. Bapurao Ravji Pawar1. In paragraph 7 it was
held that the provision of O.8, Rule 6A postulates that there has to
be some identity or connection between the claim and the counter
claim or between the causes of action enabling the parties to seek
redress. Totally different and divorced causes of action are, surely,
not intended to be clubbed or grouped nor could, as such, be tried
in one suit.
6. Learned counsel for the petitioner relied on the
Judgment of the Hon'ble Supreme Court in the case of Ashok
Kumar Kalra Versus Wing CDR. Surendra Agnihotri & Ors. in SLP
(C) No. 23599 of 2018. He relied on the illustrative examples
given in this Judgment for maintainability of the counter claim.
The examples included similarity of causes of action between the
main suit and the counter claim. One of the considerations was
that, injustice of abuse of process of law was to be avoided and
1 AIR 1985 BOMBAY 426
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there should be no prejudice to the opposite party. Learned counsel
also relied on the provision of Section 20(C) of the Specific Relief
Act, 1963. He submitted that, allowing the counter claim to go on
would certainly prejudice him. By these submissions he challenged
the counter claim.
7. Learned counsel for the respondents countered these
submissions. He submitted that, there is no requirement that there
has to be connection between two causes of action in the claim
and the counter claim. He relied on the Judgment of the Hon'ble
Supreme Court in the case of Jag Mohan Chawla & Anr. Versus
Dera Radha Swami Satsang and others2, in which, it was observed
that the counter claim need not relate to the original cause of
action but can be made on an independent and different cause of
action, even on one which accrued to defendant after institution of
the suit.
8. The submissions made by both learned counsel require
consideration. Arguable points are raised.
9. Therefore, the following order is passed:
2 (1996) 4 Supreme Court Cases 699
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ORDER
i) Rule.
ii) Rule is made returnable on 10/07/2023.
iii)Till then, there shall be interim relief in terms of
prayer clause (c).
(SARANG V. KOTWAL, J.)
