Gujarat High Court

Riyaz Mahmad Hussain Merchant vs Bhavnaben Rasiklal Vaniya on 25 September, 2025

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                           C/SCA/13143/2024                                      JUDGMENT DATED: 25/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                     R/SPECIAL CIVIL APPLICATION NO. 13143 of 2024

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE MAULIK J.SHELAT                              Sd/-
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                                   Approved for Reporting                      Yes             No
                                                                                ✓
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                                              RIYAZ MAHMAD HUSSAIN MERCHANT
                                                          Versus
                                              BHAVNABEN RASIKLAL VANIYA & ORS.
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                      Appearance:
                      MR ADIL R MIRZA(2488) for the Petitioner(s) No. 1
                      MR NIRAV C THAKKAR(2206) for the Respondent(s) No. 1,3,4,5,7
                      NOTICE SERVED for the Respondent(s) No. 2,6
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                           Date : 25/09/2025

                                                        ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate

Mr.S.C.Sharma waives service of notice of Rule on behalf of

respondent Nos.1, and 3 to 5 and 7. Though served, none

appears for the respondent nos.2 and 6. With the consent of

learned advocates of the respective parties, the matter is taken

up for hearing.

2. Heard learned advocate Mr.Adil R. Mirza for the

applicant and learned advocate Mr.S.C.Sharma for learned

advocate Mr.Nirav C. Thakkar appearing for the respondent

Nos.1, 3 to 5 and 7.

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3. The present writ application is filed under Article 227 of

the Constitution of India seeking the following relief:-

"(A) Your Lordships may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue appropriate writ, order or direction, quashing and setting aside the order dated 17.05.2024 passed by Ld. Additional Civil Judge, Umargam on an application Exh.21 in Regular Civil Suit No. 05 of 2022 which is annexed at Annexure-D;

(C) Pending hearing, admission and final disposal of this petition, Your Lordship may be pleased to stay implementation, execution and the operation of the order dated 17.05.2024 passed by Ld. Additional Civil Judge, Umargam on an application Exh.21 which is annexed at Annexure-D;

(D) Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in the interest of justice."

THE BRIEF FACTS OF THE CASE.

4. The petitioner herein is the original plaintiff, whereas the

respondents are the defendants of Regular Civil Suit No.5 of

2022 pending before the Principal Senior Civil Judge,

Umargam.

4.1. The suit is filed seeking injunction in relation to suit

property situated at Survey No. 4042 at Village Khattaltvada,

Taluka Umargam District Valsad, whereas defendant Nos.1 and

4 have filed the written statement - cum - counter claim

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below Exh.12 contending inter alia that plaintiff has

encroached upon the property belonged to defendants at

Survey No. 4301 situated at Village Khattaltvada, Taluka

Umargam District Valsad.

4.2. It appears that pending the suit/counter claim, the

impugned application came to be filed by the plaintiff below

Exh.21 requesting the Trial Court to return the counter claim

under Order VII Rule 10 of the Civil Procedure Code, 1908

(hereinafter referred to as "CPC") as according to the plaintiff,

it would not be maintainable in law inasmuch as it pertains to

the property other than the suit property.

4.3. After hearing the parties, the Trial Court vide its

impugned order dated 17.05.2024 rejected the impugned

application, hence, the present application.

SUBMISSION OF THE PETITIONER - PLAINTIFF

5. Learned advocate Mr.Mirza would submit that plaintiff

having filed the suit seeking only injunction in relation to suit

property i.e., survey no.4042 situated at Village Khattaltvada,

whereas counter claim filed for completely different property

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alleged to have been owned by defendants at Survey No.4301

at Village Khattaltvada. So, according to learned advocate

Mr.Mirza, any counter claim seeking any relief as regards oth

the property other than the suit property could not be

maintainable.

5.1. Learned advocate Mr.Mirza would submit that any

counter claim seeking relief by defendants not touching the

suit property would not be maintainable and the Trial Court

has committed a serious error of law while rejecting impugned

application.

5.2. In support of his submission, learned advocate

Mr.Mirza would rely upon the decision of Satyender And Ors

Versus Saroj And Ors, reported in (2022) 17 SCC 154.

5.3. Making the above submissions, learned advocate

Mr.Mirza would request to allow the present writ application.

SUBMISSION OF THE RESPONDENTS

6. Per contract, learned advocate Mr. Sharma, appearing for

the respondents, would submit that the issue germane to the

matter would be squarely covered by the decision of the

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Hon'ble Supreme Court in the case of Jag Mohan Chawla v.

Dera Radha Swami Satsang, reported in (1996) 4 SCC 699,

which is in fact referred to in the cited decision by learned

advocate Mr. Mirza. It is submitted that by way of

counterclaim, the defendants have specifically pleaded that

plaintiffs have encroached upon their property, albeit, other

than suit property but that would not deprive defendants of

their right to file any counterclaim, inasmuch as it is

permissible under Order VIII Rule 6A of the CPC.

6.1. Learned advocate Mr. Sharma would further submit

that when there is a specific allegation made by the defendants

in the counterclaim that the plaintiff has encroached upon

their piece of land and sought relief by way of counterclaim, it

is maintainable in law.

6.2. Lastly, learned advocate Mr. Sharma would submit

that when there is no error, much less any gross error of law,

committed by the trial court, this Court should not exercise its

power under Article 227 of the Constitution of India.

6.3. Making the above submissions, learned advocate Mr.

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Sharma would urge this Court to dismiss the present

application.

7. No other further submissions are made.

ANALYSIS

8. The facts, which are observed hereinabove, are not in

dispute. It is not in dispute that the suit property and the

property that is mentioned in the counterclaim are both

different properties. Nonetheless, the fact remains that there is

a specific allegation made by defendants in their counterclaim

that the plaintiff has encroached upon their piece of land, so

mentioned in the counterclaim, and sought relief accordingly

against the plaintiffs.

9. In this background of facts, when the counterclaim was

filed, the impugned application filed by the plaintiff under

Order VII Rule 10 of the CPC for return of the plaint would

not be sustainable in law.

10. The issue germane in the present application is squarely

covered by the decision of the Supreme Court in the case of

Jag Mohan Chawla (supra), wherein in an identical situation,

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before the Hon'ble Supreme Court, the Hon'ble Supreme Court

has observed and held thus:-

"5.The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action?................................. The words "any right or claim in respect of a cause of action accruing with the defendant"

would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment.............................. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit."

(emphasis supplied)

11. The decision so cited by learned advocate Mr. Mirza in

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support of his argument, wherein in the case of Satyender

(supra), the Supreme Court has also taken note of the decision

of the Hon'ble Supreme Court in the case of Jag Mohan

Chawla (supra), and observed as under:-

"16...........It is true that a counter claim can be made by the defendant, even on a separate or independent cause of action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors., 1996 4 SCC 699)."

(emphasis supplied)

12. So, the aforesaid decision would not be helpful and assist

the case of the plaintiffs as it would not apply to the facts of

the present case.

13. Thus, in view of the aforesaid undisputed facts germane

from the record of the case and also applying the ratio of the

footnoted decision, there is no scintilla of doubt that the

counterclaim filed by the defendants would be maintainable in

law. As such, I do not find any merits in the present

application, inasmuch as there is no error, much less any gross

error of law or any jurisdictional error committed by the trial

court, which requires interference while exercising its power