Gujarat High Court
Welspun Maxsteel Limited vs Alang Marine Limited on 8 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5229 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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WELSPUN MAXSTEEL LIMITED
Versus
ALANG MARINE LIMITED
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Appearance:
NANAVATI & NANAVATI(1933) for the Petitioner(s) No. 1
MR D K TRIVEDI(5283) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. D. K.
Trivedi waives service of notice of Rule on behalf of the
respondent. With consent of learned Advocates for respective
parties, matter is taken up for hearing.
2. Heard learned Senior Advocate Mr. Devang Nanavati along
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with learned Advocate Ms. Prachiti Shah for the petitioner and
learned Advocate Mr. D. K. Trivedi for the respondent.
3. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"A. Be pleased to allow this petition.
B. Be pleased to issue a writ of Certiorari or any other writ , order or
direction in the nature of setting aside the order impugned passed below
Exh.33 and further be pleased to issue appropriate direction to remove
the Written Submission from the record and proceedings of Special Civil
Suit No. 31 of 2013, pending before the 5th Additional Sr. Civil Judge
Court at Bhavnagar.
C. Pending hearing and final disposal of the present petition, be pleased
to issue a writ of Certiorari or any other writ, order or direction in the
nature of Stay of the order impugned passed below Exh.33 in the
proceedings of Special Civil Suit No. 31 of 2013, pending before the 5th
Additional Sr. Civil Judge Court at Bhavnagar."
4. As far as possible, the parties will be referred to as per their
original positions before the Trial Court.
5. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
6. The petitioner herein is original plaintiff, whereas, respondent
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is original defendant of Special Civil Suit No.31 of 2013
pending before the Senior Civil Judge, Bhavnagar. It appears
that defendant could not remain present before the Trial Court
and having not filed its written statement within stipulated
time, its right to file written statement closed. After framing of
the issues, plaintiff submitted its affidavit in lieu of
examination-in-chief.
6.1. At this stage, defendant appeared before the Trial Court and
requested to reopen its right to file written statement and
counterclaim, which was allowed by Trial Court vide its
common impugned order dated 15/12/2014, whereby, the Trial
Court has not only permitted the defendant to submit its
written statement but its counterclaim as well. Hence, the
present writ application by plaintiff.
7. SUBMISSIONS OF THE PETITIONER - PLAINTIFF:
7.1. At the outset, learned Senior Advocate Mr. Nanavati would
submit that order impugned as regards permitting defendant to
file counterclaim is ex facie illegal, exceeding its jurisdiction
and contrary to law laid down by Full Bench of Hon'ble
Supreme Court of India in the case of Ashok Kumar Kalra V/s.
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Wing CDR. Surendra Agnihotri and others reported in (2020) 2
SCC 394.
7.2. Learned Senior Advocate Mr. Nanavati would humbly submit
that in the case on hand, trial has already begin inasmuch as
after framing of the issues, oral evidence of plaintiff is already
submitted on record i.e. its affidavit in lieu of examination in
chief, but plaintiff could not be cross-examined due to the non-
availability of the defendant. It is submitted that as per the
decision in the case of Ashok Kumar (supra), it is now the well-
settled legal position of law that once issues framed and trial
commenced, no counterclaim can be permitted to be filed and
such a request, not to be entertained by the trial Court.
7.3. Learned Senior Advocate Mr. Nanavati would submit that
though the rule of procedure is handmaid of justice, but such
proposition would not be extended so far as the mandatory
requirement to be fulfilled by the defendant. It is submitted
that allowing the defendant to file written statement by taking
liberal approach may not be disturbed by this Court, but under
such pretext, the defendant cannot be permitted to file
counterclaim when the trial already begun.
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7.4. So, making the above submissions, learned Senior Advocate
Mr. Nanavati would request this Court to allow the present
writ application.
8. SUBMISSIONS OF RESPONDENT-DEFENDANT:
8.1. Per contra, learned Advocate Mr. Trivedi candid in his
submission that at the time of filing the impugned application
below Exhibit 33 by defendant, the affidavit in lieu of
examination-in-chief of the plaintiff already filed, available on
record of the suit, and in that view of the matter, it may be said
that the trial commenced.
8.2. Learned Advocate Mr. Trivedi would submit that due to
unavoidable circumstances and reasons set out in the impugned
application, the defendant could not remain present and file its
written statement/counterclaim. It is submitted that once the
discretion is exercised by the Trial Court when allowed
impugned application, this Court should not interfere with
such discretionary order passed by the Trial Court while
exercising its power under Article 227 of the Constitution of
India.
8.3. Learned Advocate Mr. Trivedi would humbly request this
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Court that there would not be any serious prejudice caused to
the plaintiff if the defendant is allowed to file counterclaim. It is
submitted that when the plaintiff is yet to be cross-examined by
the defendant, then allowing the defendant to file counterclaim
would not be so illegal, thereby, this Court may not interfere
with the impugned order.
8.4. Making the above submissions, learned Advocate Mr. Trivedi
would request this Court not to entertain the present writ
application.
9. No other and further submissions are made.
10. Having heard learned Advocates appearing for the respective
parties, following emerge on record.
11. The defendant was unable to file its written statement within
the stipulated time. When the impugned application below
Exhibit 33 filed by the defendant, not only issues were framed
by the Trial Court but in fact the plaintiff already submitted an
oral affidavit in lieu of its examination-in-chief, made available
on the record of the suit. This fact is not in dispute inasmuch as
already recorded by trial Court in its impugned order.
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12. Nowhere in the CPC, it has been defined when trial
commenced. Nonetheless, by various pronouncements,
Hon'ble Apex Court has either stated or explained when trial
commenced in civil suit. In the case of Kailash Vs. Nankhu and
ors. reported in (2005) 4 SCC 480, it has been stated as under :-
"'Trial' of election petition, when it
commences?
13. At this point the question arises : When
does the trial of an election petition commence
or what is the meaning to be assigned to the
word 'trial' in the context of an election
petition? In a civil suit, the trial begins
when issues are framed and the case is set down
for recording of evidence. All the proceedings
before that stage are treated as proceedings
preliminary to trial or for making the case
ready for trial. As held by this Court in
several decided cases, this general rule is not
applicable to the trial of election petitions
as in the case of election petitions, all the
proceedings commencing with the presentation of
the election petition and upto the date of
decision therein are included within the
meaning of the word 'trial'."
(emphasis supplied)
12.1. At this stage it is also profitable to refer and rely upon the Full
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Bench decision of the Hon'ble Apex Court in the case of Union
of India Vs. Major General Madan Lal Yadav (Rtd.) reported in
(1996) 4 SCC 127, wherein it has been held in Para 13 to 19,
which reads as under:-
"13. The words "trial commences" employed in
Section 123 [2] shall be required to be
understood in the light of the scheme of the
Act and the Rules. The question is as to when
the trial is said to commence? The word 'trial'
according to Collins English Dictionary means:
"the act or an instance of trying or
proving; test or experiment... Law. a. the
judicial examination of the issues in a
civil or criminal cause by a competent
tribunal and the determination of these
issues in accordance with the law of the
land. b. the determination of an accused
person's guilt or innocence after hearing
evidence for the prosecution and nor the
accused and the judicial examination of
the issues involved".
14. According to Ballentine's Law Dictionary
[2nd ed.] 'trial' means:
"an examination before a competent
tribunal according to the law of the land,
of the facts or law put in issue in a
cause, for the purpose of determining such
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issue. When a court hears and determines
any issue of fact or law for the purpose
of determining the right of the parties,
it may be considered a trial"
15. In Block's Law Dictionary [Sixth Edition]
Centennial Edition, the word 'trial' is defined
thus:
"A judicial examination and determination
of issues between parties to action,
whether they be issues of law or of fact,
before a court that has jurisdiction... A
judicial examination, in accordance with
law of the land, of a cause, either civil
or Criminal, of the issues between the
parties, whether of law or facts, before a
court that has proper jurisdiction".
16. In Webster's Comprehensive Dictionary
International Edition, at page 1339, the word
'trial' is defined thus:
"....The examination, before a tribunal
having assigned jurisdiction, of the facts
or law involved in ail issue in order to
determine that issue. A former method of
determining guilt or innocence by
subjecting the accused to physical tests
of endurance, as by ordeal or by combat
with his accuser... In the process of
being tried or tested... Made or performed
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in the course of trying or testing...".
17. The word `commence' is defined in Collins
English Dictionary to mean "to start or begin;
come or cause to come into being, operation
etc." In Black's Law Dictionary it is defined to
mean:
"to initiate by performing the first act or
step. To begin, institute or start.
Civil action in most jurisdictions is
commenced by filing a complaint with the
court....
Criminal action is commenced within
statute of limitations at time preliminary
complaint or information is filed with
magistrate in good faith and a warrant
issued thereon... A criminal prosecution
is "commenced" [1] when information is
laid before magistrate charging commission
of crime, and a warrant of arrest is
issued, or [2] when grand jury has
returned an indictment".
18. In the "Words and Phrases" [Permanent
Edition] Vol.42A, at page 171, under the head
"Commencement", it is stated that ".4 'trial'
commences at least from the time when work of
empanelling of a jury begins".
19. It would, therefore, be clear that trial
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means act of proving or judicial examination or
determination of the issues including its own
jurisdiction or authority in accordance with
law or adjudging guilt or innocence of the
accused including all steps necessary thereto .
The trial commences with performance of the
first act or steps necessary or essential to
proceed with trial."
(emphasis supplied)
12.2. Thus, in view of the aforesaid position of law, according to my
view, the trial in the case on hand already commenced as oral
evidence of the plaintiff is filed having made available on
record of the suit.
12.3. As per the decision Ashok Kumar Kalra (supra), wherein, the
Full Bench of the Hon'ble Apex Court, after analyzing the
provisions of Order 8, Rule 6-A of the Code of Civil Procedure,
1908 (hereinafter referred to as "CPC"), held thus:
"21. We sum up our findings, that Order 8 Rule
6-A 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
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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."
56. The above discussion lends support to the
conclusion that even though Rule 6-A permits
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the filing of a counterclaim after the written
statement, the court has the discretion to
refuse such filing if it is done at a highly
belated stage. However, in my considered
opinion, to ensure speedy disposal of suits,
propriety requires that such discretion should
only be exercised till the framing of issues
for trial. Allowing counterclaims beyond this
stage would not only prolong the trial, but
also prejudice the rights that may get vested
with the plaintiff over the course of time."
(emphasis supplied)
13. In view of the aforesaid pronouncement of law by the Full
Bench of the Hon'ble Apex Court, the issue germane in the
matter is no longer remains res integra, inasmuch as it is now
well-settled legal position of law that after framing of issues
and when trial commenced, counterclaim cannot be permitted
to be filed by the defendant.
14. Having reached to the aforesaid conclusion, the order
impugned requires to be interfered with by this Court while
exercising its power under Article 227 of the Constitution of
India, to the extent permitting the defendant to file
counterclaim, inasmuch as impugned order not only bad in
law, but passed exceeding its jurisdiction, also not in
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consonance with position of law stand as on date. It is well
settled law that when such would be the impugned order, to
keep the Court within its bound, this Court requires to exercise
its supervisory power vested in Article 227 of the Constitution
of India. [See - Waryam Singhvs vs. Amarnath,, reported in AIR
1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick
and Another vs. Ghoshal and Others, reported in 2025 SCC
OnLine SC 360 (para 53 to 58)].
15. As far as permitting the defendant to file written statement is
concerned, there is no vehemence on the part of learned Senior
Advocate Mr. Nanavati appearing for the plaintiff, inasmuch
as it is otherwise a discretionary order passed by the Trial
Court allowing the defendant to file its written statement
beyond period of limitation so prescribed under Order 8, Rule
1 of the CPC. This Court also would not like to interfere with
such discretionary order passed by the Trial Court permitting
the defendant to file its written statement.
CONCLUSION
16. In view of foregoing reasons, the impugned common order
dated 15/12/2014 passed by the 5th Additional Senior Civil
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Judge, Bhavnagar below Exhibit 33, requires to be modified to
the extent permitting the defendant to file its counterclaim.
17. Consequently, the impugned application filed below Exhibit 33
by the defendant in the aforementioned suit is partly allowed,
whereby, the defendant is permitted to file its written statement
only but not allowed to file its counterclaim.
18. In view of the foregoing conclusion, the present writ
application is partly allowed to the aforesaid extent. Rule is
made absolute accordingly. No order as to costs. Now, trial
Court shall expedite hearing of the suit.
(MAULIK J.SHELAT,J)
NILESH
