[Cites 11, Cited by 0]
Bombay High Court
Shri Rupchand S/O Kundalik Kadu And ... vs Mrs Bhagirath W/O Santoshji Gaurkar And ... on 11 March, 2026
1 24. MCA 155.26 - Copy.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISC. CIVIL APPLICATION (REVIEW) NO.155 OF 2026
IN
SECOND APPEAL ST. NO.4292 OF 2025 (D)
WITH
MISC. CIVIL APPLICATION (REVIEW) NO.156 OF 2026
IN
SECOND APPAL NO.275 OF 2022
Rupchand Kundalik Kadu and ors.
Vs.
Mrs. Bhagiratha W/o Santoshji Gaurkar and ors.
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. M. G. Bhangde, Senior Advocate a/b. Dr. R. I. Agrawal and Mr.
S. S. Chauhan, Advocates for applicants/appellants.
CORAM : ROHIT W. JOSHI, J.
DATE : 11.03.2026.
. The present applications are filed under Section
114 read with Order 47 Rule 1 of the Code of Civil
Procedure, 1908 (for short, "the CPC"), seeking review of
the judgment dated 11.02.2026 passed by this Court in
Second Appeal St. No.4292 of 2025. It needs to be stated
that Second Appeal No.275 of 2022 and Second Appeal
St. No.4292 of 2025 were filed by the non-applicants
No.1,2, 4, 5 and 6.
2. The said appeals are filed challenging common
judgment and decree dated 04.03.2022 passed by the
learned District Judge-4, Nagpur in Regular Civil Appeal
Nos.16 of 2021, 159 of 2019 and 169 of 2019. These
three appeals were filed by the original plaintiff,
2 24. MCA 155.26 - Copy.odt
defendant Nos.1 and 2 and legal representatives of
deceased defendant No.3.
3. The original plaintiff is son of defendant No.1. He
filed a suit for partition and separate possession seeking
share in the property of his grand-father. Since the
plaintiff's grand-father died after commencement of
Hindu Succession Act,1956 and the properties were
found to be self acquired properties of the grand-father,
the learned Trial Court dismissed the suit on the ground
that during the lifetime of his father (defendant No.1),
the plaintiff could not claim any share in the properties
of his deceased grand-father.
4. Defendant Nos.1, 2 and 3, who are sons and
widow respectively of the original owner of the suit
properties had sold two of the suit properties bearing
Survey Nos.160 and 202 to defendant No.6 vide Sale
Deed dated 29.01.2014.
5. Daughters of original owner and defendant No.3
were not initially joined as parties to the civil suit.
Defendant No.3 expired during the pendency of the suit.
Her two sons were already on record as defendant Nos.1
and 2. After her demise, her daughters were brought on
record as her legal representatives.
6. The daughters filed a counter-claim seeking
partition and separate possession with respect to all the
suit properties, including the properties sold by
defendant Nos.1, 2 and 3 in favour of defendant No.6.
3 24. MCA 155.26 - Copy.odt
The learned 5th Joint Civil Judge, Senior Division, Nagpur
dismissed the suit and decreed counter claim in part vide
judgment and decree dated 28.02.2019. The learned
Trial Court held that the daughters of defendant No.3,
who were brought on record as her legal representatives,
were entitled to a share in the suit properties, other than
the two properties which were sold by defendant Nos.1,
2 and 3 to defendant No.6.
7. As stated above, the plaintiff, daughters of
defendant No.3 and defendant Nos.1 and 2 preferred
separate appeals challenging the aforesaid judgment and
decree passed by the learned Trial Court.
8. The learned District Judge-4, Nagpur dismissed
the appeals preferred by the original plaintiff and legal
representatives of defendant No.3 (present non-
applicants) and allowed the appeal preferred by
defendant Nos.1 and 2. As a result, the suit and counter-
claim both stood dismissed. The learned First Appellate
Court held that counter-claim filed by the present non-
applicants/legal representatives of original defendant
No.3 for partition and separate possession against co-
defendants was not maintainable, inasmuch as, no relief
was sought in the counter-claim against the original
plaintiff.
9. The legal representatives of defendant No.3, who
are the present non-applicants, filed the aforesaid second
appeals challenging the said judgment and decrees
4 24. MCA 155.26 - Copy.odt
passed by the learned First Appellate Court dismissing
their counter-claim and allowing the appeal filed by their
brothers, defendant Nos.1 and 2. Vide order dated
10.08.2022, Second Appeal No.275 of 2022 came to be
admitted on the following substantial questions of law:-
"I) Whether the co-defendant can file
an application under order VIII, Rule 6-C of
the Civil Procedure Code, 1908 for exclusion
of counter claim, when as per order VIII,
Rule 6-C of C.P.C., only plaintiff can file the
application for exclusion of counter claim?
II) Whether the counter claim is
maintainable?
III) Whether the separate suit for
partition, separate possession and
cancellation of sale deed on behalf of the
appellants is maintainable, when the suit
for partition, separate possession and
cancellation of sale deed between the same
parties, for the same properties and for the
same relief is pending before the competent
Court of law?
IV) Whether the learned appellate
Court committed serious error of law by
ignoring record and submitted that the
counter claim is barred by limitation.
Specifically, the property was self acquired
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property and till date, no partition is
effected?
V) Whether mere verification of
Revenue Record to ascertain title of a
person by itself is sufficient for declaring
respondent no.7 as a bonafide purchaser?"
10. The appeals came to be allowed by this Court
vide common judgment dated 11.02.2026. This Court
has granted a decree for partition and separate
possession to the appellants, who are legal
representatives of original defendant No.3. It is held that
the sale deed executed by defendant Nos.1 to 3 in favour
of defendant No.6 is valid only to the extent of their
share and that the said sale deed is not binding on the
appellants. Accordingly, appellants are granted decree for
partition with respect to their shares in the suit
properties sold by defendant Nos.1 to 3 to defendant
No.6. With respect to the other suit properties, this Court
has maintained the decree for partition and separate
possession in favour of the sons and daughters of the
original owner which was granted by the learned Trial
Court. Since the father died after commencement of
Hindu Succession Act, 1956 without leaving any Will and
the sons and daughters are class-1 legal representatives,
equal share is granted. Review of the said common
judgment is sought in the present application.
11. At the outset, Mr. M.G. Bhangde, learned Senior
Advocate for the applicants, does not dispute the shares
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of respective parties as are computed in the judgment
under review. The contention of Mr. Bhangde, however,
is that counter-claim filed by the daughters of original
defendant No.3 seeking relief for partition and separate
possession against the co-defendants was not
maintainable, since no relief was sought in the counter-
claim against the original plaintiff. He contends that
maintainability of a counter-claim is not a matter of
technicality but a vital aspect pertaining to the
jurisdiction of a Court of law and since the counter-claim
was not maintainable, the same was rightly dismissed by
the learned First Appellate Court.
12. He further elaborates that while this Court has
also concurred on this legal aspect with the learned First
Appellate Court and in terms accepted the contention
that counter-claim was not maintainable, it ought not to
have placed reliance on Section 99 of the CPC to hold
that the objection with respect to maintainability of the
counter-claim was a technical objection. His contention is
that the objection was pertaining to jurisdiction of the
learned Trial Court and as such, the same could not be
brushed aside as a technical objection. Mr. Bhangde,
further contends that the appeal was admitted vide order
dated 10.08.2022 on five substantial questions of law,
out of which substantial question of law Nos.1 and 2
pertain to the maintainability of counter-claim and
exclusion of counter-claim, which have not been
answered by this Court and a question relating to scope
7 24. MCA 155.26 - Copy.odt
of interference with a decree in the light of Section 99 of
the CPC is answered, which question was in fact was not
framed by this Court at all. He contends that this is
another error that has crept in the judgment under
review.
13. It will be pertinent to state that although several
grounds are raised in the application for review, these are
the only two grounds, which were pressed into service.
14. The learned senior advocate has placed reliance
on judgments in the case of Sansar Chand Vs. Swami
Vivekanand Adarsh Vidha Mandir1 and in the case of
Surat Singh Vs. Hukam Singh Negi 2, respectively to
contend that duty is cast on a Court hearing appeal
under Section 100 of the CPC to frame a substantial
question of law and hear the appeal only on that
question after giving opportunity of hearing to the
parties.
15. With respect to maintainability of counter-claim,
the learned senior advocate has placed strong reliance on
judgments of the Hon'ble Supreme Court in the case of
Rohit Singh and Ors. Vs. State of Bihar and Ors. 3 and in
the case of Rajul Manoj Shah Alias Rajeshwari Rasiklal
Sheth Vs. Kiranbhai Shakrabhai Patel and Anr 4. Apart
from the aforesaid decisions, the learned senior advocate
places reliance on judgment in the case of State of
1(2010) 15 SCC 155
2(2010) 15 SCC 525
3 (2006) 12 SCC 734
4 2025 INSC 1109
8 24. MCA 155.26 - Copy.odt
Rajasthan Vs. Rao Raja Kalyan Singh (Dead) by his L.Rs. 5
and in the case of R. Kandasamy (since dead) and ors.
Vs. T.R.K. Sarawathy and anr6 to contend that the plea
regarding maintainability of a suit is a legal plea and
that, if a suit is not maintainable, the fact that specific
objection in that regard is not raised is not of any
consequence. He contends every aspect pertaining to
jurisdiction of a Court must essentially be dealt with by
the learned Trial Court before granting decree to the
plaintiff.
16. Mr. Bhangde, also draws attention to paragraph
No.20 of the written statement to counter-claim and
contends that an objection with respect to
maintainability of counter-claim was in fact raised in the
counter-claim and further that issue with respect to
maintainability of counter-claim was also framed by the
learned Trial Court. He therefore criticizes the
observations in the judgment wherein it is recorded that
objection to maintainability of counter-claim was not
raised and that the counter-claim was contested on
merits without reservations.
17. It must be accepted that the applicants had raised
an objection to the maintainability of counter-claim in
the written statement. It must also be stated that the
observation that objection was not raised to
5 (1972) 4 SCC 165
6 (2025) 3 SCC 513
9 24. MCA 155.26 - Copy.odt
maintainability of counter-claim that has appeared in the
judgment under review is incorrect.
18. The bone of contention of the learned senior
advocate is that a counter-claim for seeking relief against
co-defendants is not maintainable, particularly when no
relief is sought against the plaintiff. This proposition of
law is accepted while deciding the Second Appeal. It
must be stated that the counter-claim is filed seeking
partition and separate possession. The counter claimants
have sought relief of partition only against the co-
defendants. It is also true that no relief was sought in the
counter-claim against the original plaintiff. The
judgments in the cases of Rohit Singh (supra) and Rajul
Manoj Shah (supra) certainly lay down that a counter-
claim filed for seeking relief only against co-defendants
will not be maintainable unless a relief is also sought
against the plaintiff.
19. In a suit for partition and separate possession,
every party is a plaintiff and also a defendant. The
counter claimants in a suit for partition can get
themselves transposed as plaintiffs and once that is done
the objection that prayer in counter-claim is reiterated to
defendants alone can be fully taken care of. Placing
reliance on this settled legal principle, this Court in the
case of Multicon Builders Vs. Sumandevi (First Appeal
No.295 of 2012 decided vide judgment dated
10.09.2014 at Nagpur Bench) has held that counter-
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claim for partition and separate possession will be
maintainable even if it is filed seeking relief only against
the co-defendants. The judgment in the case of Rohit
Singh (supra) is considered by this Court in the case of
Multicon Builders (supra) and has held that a counter-
claim for relief of partition and separate possession will
be maintainable although relief is sought only against the
co-defendants and not against the plaintiff. It may be
stated that Civil Appeal Nos.8400-8401 arising out of the
said judgment came to be dismissed by the Hon'ble
Supreme Court on a different ground.
20. In view of the above, argument pertaining to
maintainability of counter-claim is liable to be rejected.
21. It must be stated that counter-claim is a separate
suit by itself. It is not in dispute that the learned Civil
Court had the subject matter jurisdiction to adjudicate
the claim for partition and separate possession. The
learned Civil Court, thus did not lack inherent
jurisdiction. As regards, procedural aspects of
jurisdiction, i.e., territorial jurisdiction and pecuniary
jurisdiction, it cannot be disputed that the learned Trial
Court did not lack territorial jurisdiction or pecuniary
jurisdiction. In that sense, the decree does not suffer
from any error of jurisdiction. The difference in a plaint
and counter-claim is only one of form. Therefore, if a
claim is correctly adjudicated by a Civil Court, may be by
way of counter-claim instead of a separate suit, the same
11 24. MCA 155.26 - Copy.odt
can be protected by taking shelter under Section 99 of
the Code of Civil Procedure rather than setting aside on
the ground that counter-claim was not maintainable
although same relief must necessarily follow if the
counter-claim is dismissed on the ground of
maintainability and the counter-claimants are relegated
to instituting a separate civil suit for the cause agitated in
the counter-claim.
22. It will also be pertinent to state that in the case of
Rohit Singh, apart from maintainability of counter-claim,
the Hon'ble Supreme Court has also considered the
merits of the counter-claim and has held that the
counter-claimants were in fact not entitled to the relief
that was granted to them. In the case of Manoj Shah the
counter-claim was not decided on merits. The matter
went before the Hon'ble Supreme Court only with
respect to maintainability of counter-claim. The present
situation where a decree passed in counter-claim, which
is otherwise in accordance with law is sought to be
dislodged only on the ground of maintainability of
counter-claim.
23. With respect, the ratio of Rohit Singh and Rajul
Manoj Shah is not that a decree passed in counter-claim
which is otherwise in accordance with law should be set
aside on the ground that counter-claim was not
maintainable particularly when filing of civil suit for the
relief granted in the counter-claim would result in the
12 24. MCA 155.26 - Copy.odt
same decree as is passed in the counter-claim.
24. This Court has held that the learned First
Appellate Court should not have interfered with the
decree passed by the learned Trial Court only on the
ground that relief in counter-claim was sought only
against the co-defendants since taking the defence of the
contesting defendant Nos.1, 2 and 6 on its face value, the
decree passed in the counter-claim is inevitable. The
learned Trial Court had correctly computed the shares of
the parties with respect to properties, which were not
sold by defendant Nos.1 to 3. This Court has confirmed
the decree to that extent. As regards the property which
is sold by defendant Nos.1 to 3 to defendant No.6, this
Court has held that since the appellants were not parties
to the sale deed and they had also inherited the said
property from their father, the sale deed was not binding
on them to the extent of their share. Accordingly, a
decree for partition is granted to them in the property
which is sold by defendant Nos.1 to 3 to defendant No.6.
25. It will be appropriate to refer to following
decisions of the Hon'ble Supreme Court where the
Hon'ble Supreme Court has held that laws of procedure
are handmaid of justice and therefore technicalities
should be kept at bay and endeavour of Courts should
always be to impart substantive justice:-
Manohar Lal Vs. N.B.N. Supply, Gurgaon7,
7 AIR 1969 SC 1267
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"5... Rules of procedure are intended to
be handmaid to the administration of
justice. A party cannot be refused just
relief merley because of some mistake,
negligence, inadvertence or even
infraction of rules of procedure..."
Union of India Vs. Jyoti Chit Fund and Finance and ors8,
"7.....A shift on the emphasis, away from
technical legalistics, is overdue if the
Judicature is not to aid its grave diggers.
We express the view strongly so that
hopefuls may be dissuaded from taking up
court time by playing up technicalities...."
Kulwant Kaur and ors. Vs. Gurdial Singh Mann (Dead)
by LR's and ors9.
"34....Technicality alone by itself ought
not to permit the High Court to decide the
issue since justice-oriented approach is the
call of the day presently.."
Sugandhi (Dead) by LR's Vs. P. Rajkumar represented
by his Power Agent Imam Oli10
"9. It is often said that procedure is the
handmaid of justice. Procedural and
technical hurdles shall not be allowed to
come in the way of the court while doing
8 AIR 1976 SC 1163
9 (2001) 4 SCC 262
10 (2020) 10 SCC 706
14 24. MCA 155.26 - Copy.odt
substantial justice. If the procedural
violation does not seriously cause
prejudice to the adversary party, courts
must lean towards doing substantial
justice rather than relying upon
procedural and technical violation. We
should not forget the fact that litigation is
nothing but a journey towards truth which
is the foundation of justice and the court is
required to take appropriate steps to
thrash out the underlying truth in every
dispute."
26. The aforesaid legal principle is statutorily
recognized and embodied under Section 99 of the CPC. It
will be appropriate to refer to judgment of this Court in
the case of Subhash Vithalrao Gatlewar and ors. Vs.
Dattatraya Keshavrao Shinde11, wherein, reiterating the
same legal principle with specific reference to Section 99
of the CPC, this Court has held as under:-
"Section 99 of Civil Procedure Code puts a
guard on the power of the appellate Court to
interfere in the judgment appealed against to
the effect that if the error banked upon by the
appellants committed by the appellate Court
while delivering the judgment in question does
not affect the merits of the case, such judgment
need not be interfered..."
11 2005 2 AllMR 757
15 24. MCA 155.26 - Copy.odt
27. In view of law laid down in the case of Multicon
(supra) the counter-claim was maintainable and even
otherwise the objection is technical in nature.
28. Applications for review are, therefore, rejected
with no order as to costs.
(ROHIT W. JOSHI, J.)
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