Bombay High Court
Sampat Vasant Walhekar And Anr vs Suresh Mulchand Kankaria Decd ... on 16 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. 15193 OF 2022
Sampat Vasant Walhekar & Anr. ..Petitioners.
Versus
Suresh Mulchand Kankaria Through
LRs. & Ors. ..Respondents
__________
Mr. Amol B. Jagtap for Petitioners.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 16 MARCH 2023
PC :
1. The Petitioners have challenged the order dated
27/10/2021 passed by 4th Jt. Civil Judge, S.D., Pune, below
Exh.309 in R.C.S.No.2276 of 2000. By the impugned order,
learned Trial Judge had rejected the Petitioners' i.e. original
Plaintiffs' application under O.7, R.11 of the C.P.C. for rejection of
the counter claim filed by the Respondents herein who are the
original Defendants.
2. Learned counsel for the Petitioners submitted that the
suit was filed in the year 2000. The Written statement was filed in
Digitally
signed by
VINOD
VINOD
BHASKAR
BHASKAR GOKHALE
the year 2013. The amendment to the suit was allowed on
GOKHALE Date:
2023.03.17
11:34:19
+0530
Gokhale
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13/08/2019 vide order passed below Exh.295. Learned Trial Judge
has observed in paragraph Nos.14 and 15 as to why the Petitioners'
application under O.7, R.11 of the C.P.C. was rejected. According to
learned Trial Judge, once the Plaintiffs carried out amendment to
the suit, the Defendants get right to file the amended written
statement and automatically get a right to file counter claim.
3. Learned counsel for the Petitioners submitted that, the
necessary averments in respect of the documents referred to in
paragraph No.14 of the impugned order and, in particular, Visar
Pavati dated 20/03/1999, the agreement for sale dated
02/06/1992, and the Power of Attorney dated 23/04/1992 were
already referred to in the original plaint in paragraph No.5. The
amendment to the plaint did not change the nature of the suit and,
therefore, once the written statement was filed in the year 2013; at
that time since the Defendants had not filed any counter claim,
after all these years, the Defendants are not entitled to file their
counter claim. He submitted that, in any case, their counter claim
is barred by limitation.
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4. Learned counsel for the Petitioners also relied on the
ratio of the Judgment passed by the Hon'ble Supreme Court in the
case of Ashok Kumar Kalra Versus wing CDR. Surendra Agnihotri
& Ors.1 holding that, the counter claim cannot be filed after issues
have been framed. Under exceptional circumstances, counter claim
may be permitted to be filed after issues have been framed, but
prior to commencement of recording of plaintiff's evidence.
Learned counsel for the Petitioners submitted that, recording of the
evidence has already commenced and the matter is at the stage of
arguments. Therefore, even otherwise, the counter claim was not
maintainable.
5. Considering these submissions, it is necessary to hear the
Respondents. However, till the Respondents are heard, learned
counsel for the Petitioners has made out a case for ad-interim
relief.
6. Hence, the following order:
1 (2020) 2 Supreme Court Cases 394
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ORDER
i) Issue notice to the Respondents, returnable on
10/07/2023.
ii) Till then, there shall be ad-interim relief in terms
of prayer clause (B).
iii) Stand over to 10/07/2023.
(SARANG V. KOTWAL, J.)
