KASHINATH VIRBHADRA BANALE v. …
Case Details
2025:BHC-AUG:7089 (1) 49wp2826.25 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 49 WRIT PETITION NO. 2826 OF 2025 KASHINATH VIRBHADRA BANALE VERSUS ….Petitioner CHAKRADHAR VIRBHADRA BANALE AND OTHERS …..Respondents
Legal Reasoning
Mr. Vinesh Solshe, Advocate for the petitioner Mr. Manoj G. Biradar, Advocate for the respondent No.1 CORAM : KISHORE C. SANT, J. DATE : 05th MARCH, 2025 P. C. 1. 2. Heard the parties at length. The petitioner is the original defendant No.1 in the suit i.e. Special Civil Suit No.67/2019 instituted by the present respondent No.1. Suit is for partition and separate possession. Present petitioner, alongwith defendants, filed their written statement. It is the contention in the written statement that the plaintiff has not included all the properties belonging to the joint property. There are certain properties situated at Pune. However, 1 of 6 (2) 49wp2826.25 details were not available. Therefore, it was directed to provide the details of the property which are not included in the plaint. Even issue came to be framed on 19-07-2024. On 19-07-2024 at that stage the defendants filed a counter claim who has filed application Exh.88, i.e. after framing of the issues. The learned trial court passed the order and discarded the counter claim considering the order Rule 6-A. Therefore, the petitioner is before this court. 3. Mr. Solshe, learned advocate for the petitioner vehemently argued the petition. He submits that though the plaintiff was aware of the details of the property situated at Pune, he did not provide the same in the court in spite of request. It is only after framing of issues he provided the details of those properties. Till the details were given, there was no occasion and cause for the petitioner to file counter claim. He submits that it is due to lapses on the part of the plaintiff the counter claim could not be filed earlier. He relied on the judgment in the case of Ashok Kumar Karla Vs Wing CDR. 2 of 6 (3) 49wp2826.25 Surendra Agnihotri and Others 1 . The Hon’ble Apex Court in the said case considered the order 8 Rule 6-A. Para NO. 21 of the said judgment which reads as under:- 21. We sum up our findings, that Order 8 Rule 6-A does not put an embargo on filing the counter claim 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 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. xi] And facts and circumstances of each case. x] In any case, not after framing of the issues. 1 (2020) 2 SCC 394 3 of 6 (4) 49wp2826.25 4. The learned advocate relies on clauses- ii, iii & x. He,
Decision
thus, prays for allowing the writ petition by directing the trial court to accept the counter claim. 5. Mr. Biradar, learned advocate for the respondent vehemently opposed the petition. He submits that in view of order 6-A Rule 8 no counter claim can be accepted after limitation. In the present case the petitioner filed written statement in 2020. He has filed written statement raising various contention including that the properties situated at Pune are not included in the suit and prayed to dismiss the suit on that ground and therefore, no reason was for him to wait till October, 2024 to file this counter claim. He relies upon the judgment in the case of Rohit Singh and Ors Vs State of Bihar another 2 & judgment in the case of Ramesh Chand Ardawatiya Vs Anil Panjwani 3 . The Hon’ble Apex court in both the cases observed that counter claim cannot be accepted after suit proceeds beyond framing of issue and at the stage of evidence.