Deepa Mohanro Chavan & Anr. vs Meena Suhasrao Desai (Pawar) & Ors.

The Applicants/original defendant Nos.1 and 4 takes exception to order dated 6^th March 2023 passed by Civil Judge, Senior Division, Sangli below Exhibit 154, thereby rejecting application of applicants filed under Order 7 Rule 11(d) of Code of Civil Procedure (For short, ‘CPC’) seeking rejection of counterclaim filed by Respondent No.2/original defendant No.5.

The Respondent No.1/original plaintiff filed Special Civil Suit No.249 of 2009 before learned Civil Judge, Senior Division, Sangli seeking relief of declaration and partition in respect of suit properties, more particularly described in plaint paragraph No.1. It is case of plaintiff that her father Aabasaheb expired on 23^rd March 1974. Her mother expired on 16^th April 2009. Her brother expired on 27^th March 2008. The suit properties are joint family properties of parties to suit proceeding. It is further contended that gold ornaments, which is “stridhan’’ of their mother Prabhavati are in custody of present Applicant No.1/defendant No.1. The plaintiff had issued notice through her Advocate, wherein it is replied that defendant No.5 knows about gold ornaments. The defendant No.5 filed written statement and contended that gold ornaments were taken by Applicant No.1’s husband, i.e., Applicant No.2. The present Applicants alongwith defendant No.2 filed written statement contending that stridhan/gold ornaments of Prabhavati were in custody of Applicant No.1 and Prabhavati never handed over gold ornaments to Applicant No.1. They pleaded that gold ornaments were never kept by Prabhavati in lockers.

Meanwhile, plaintiff carried certain amendments in plaint and deleted names of defendant Nos.7 to 10. On 29^th June 2017, defendant No.5 under garb of filing written statement to amended plaint raised counterclaim seeking relief of mandatory injunction against defendant No.1/present applicant No.1 in respect of gold ornaments alleging that those were in possession of Applicants.

During pendency of suit, Court Commissioner was appointed, who prepared inventory of articles found in locker. On basis of report of Court Commissioner, it is contention of defendant No.5 that gold ornaments are in custody of applicant No.1/defendant No.1.

The Applicants filed application below Exhibit 154 under Order 7 Rule 11(d) of CPC seeking rejection of counterclaim filed by original defendant No.5 against applicants/original defendant Nos.1 to 4 on ground that written statement was filed on 28^th December 2009, however counterclaim was not raised. The counterclaim which is filed in year 2017, is barred by limitation. Further, requisite court fees is not paid. The counterclaim cannot be filed in respect of cause of action, which is arose after filing of written statement, particularly against co-defendants. The Trial Court rejected application by impugned order dated 6^th March 2023. Hence, this Civil Revision Application.

Mr. Kuldeep Nikam, learned Advocate appearing for Applicants vehemently submits that there is no provision under law to enable filing of counterclaim by defendant against co-defendant. He would endeavour to contend that in present case cause of action for filing counterclaim arose after filing of written statement. Relying upon law laid down by Supreme Court of India in case of Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri & Ors.,^{11.(2020) 2 SCC 394.} he would submit that now it is well settled that belated counterclaim, patently barred by limitation cannot be allowed. Similarly, by relying upon law laid down in case of Rajul Manoj Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai Shankarbhai Patel & Anr.,^{22.2025 INSC 1109.} he would submit that counterclaim cannot be directed against co-defendant.

Per contra, Mr. Kulkarni, learned Advocate appearing for Respondents supports impugned order. He relies upon judgment of Madras High Court in case of A. Mohamed Sulaiman & Anr. v. A. Ameena Beevi (Deceased) & Ors.^{33.2013 (2) CTC 735.}

Having considered submissions advanced by learned Advocates appearing for respective parties, it can be observed that Respondent No.1 instituted Special Civil Suit No.294 of 2009 seeking decree of partition and specific possession in respect of properties mentioned in schedule appended to plaint. The schedule 4 relates to gold ornaments weighing 496 gm. In paragraph No.7 of plaint, it is specified that gold ornaments were stridhan of plaintiff’s mother Prabhavati and those are in possession of defendant No.5. The defendant No.5 had filed written statement in year 2009 and pleaded that gold ornaments which were part of stridhan of his wife were kept in possession of late Mohanrao, i.e., huband of applicant No.1 and no partition has been effected in respect of movable property which are kept in locker. In said written statement, defendant No.5 has not raised any counterclaim, but stated that he may be given his share in all properties including gold ornaments at the time of partition.

In year 2017, defendant No.5 filed additional written statement in pursuance to amendment carried out in plaint. In that written statement, he raised counterclaim contending that when bank locker of defendant No.1 was opened through Court Commissioner, the inventory of gold ornaments was carried out and ornaments found in locker are put in possession of defendant No.1. The ornaments which are owned by defendant No.5 are found in possession of defendant Nos.1 to 4. As such, cause of action arise after filing of suit. The defendant No.5 accordingly claimed that defendant Nos.1 to 4 shall be directed by way of mandatory injunction to hand over ornaments to him.

Apparently, claim in counterclaim of defendant no.5 is against defendant Nos.1 to 4 and not against plaintiff. In paragraph No.6 of counterclaim, defendant No.5 has specifically pleaded that after opening of locker through Court Commissioner, it has been revealed that gold ornaments were in possession of defendant Nos.1 to 4, cause of action arose after filing of suit. In light of aforesaid factual aspects, as per observations of Supreme Court in case of Rajul Manoj Shah (supra), counterclaim cannot be permitted solely against co-defendant, when it appears that counterclaim has necessarily directed against plaintiff in suit, though incidentally or alongwith it, it may also claim relief against co-defendants in suit, but when counterclaim directed solely against co-defendant, it cannot be maintained. Similarly, in light of law laid down by Supreme Court in case of Ashok Kumar Kalra (supra) , it has been observed that restriction to file counterclaim is only with respect to accrual of cause of action and counterclaim for which cause of action arose after filing of written statement in suit, such counterclaim cannot be entertained.

In present case, prayers incorporated by defendant No.5 in counterclaim suggests that counterclaim is solely against defendant Nos.1 to 4 for decree of mandatory injunction. Further, cause of action for filing counterclaim has accrued after filing of suit and written statement. In that view of matter, there is no reason to entertain counterclaim particularly when it is filed after nine years of filing written statement.

The Trial Court while declining prayer for rejection of counterclaim observed that since present suit is for partition and separate possession, plaintiff and defendants assumed status of plaintiff, therefore counterclaim can be permitted to avoid multiplicity of litigation. There is no doubt about proposition of law that has been considered by trial Court. However, in present case, counterclaim relates to cause of action that arose after institution of suit. Secondly, it is exclusively against co-defendant. Further, reliefs claimed in counterclaim is in nature of mandatory injunction to hand over gold ornaments, which are alleged to be owned by defendant No.5. Therefore, prayers in counterclaim are altogether different than dispute in partition suit.

In result, impugned order cannot be sustained in law. Hence, Civil Revision Application is allowed in terms of prayer clause (a).

The application below Exhibit 154 in Special Civil Suit No.249 of 2009 before Civil Judge, Senior Division, Sangli stand allowed