# MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS & ORS

- **Citation:** [2022] 16 S.C.R. 565
- **Court:** Supreme Court of India
- **Decided:** 2022-10-12
- **Case number:** Civil Appeal No. 7203 of 2022
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahesh-govindji-trivedi-v-bakul-maganlal-vyas-ors-35449
- **Pages:** 28

## Headnote

Code of Civil Procedure, 1908 - Or.VIII, r.6-A - Counterclaim by defendant - Bombay High Court Rules - r.95 - Suit for
specific performance filed by respondent-plaintiff - Notice of motion
moved by the appellant-defendant to take the belatedly filed counterclaim on record, allowed by Single Judge - Order set aside by
Division Bench - On appeal, held: Rules of procedure are intended
to subserve the cause of justice rather than to punish the parties in
conduct of their case - The counter-claim in question could not
have been removed out of consideration merely because it was
presented after a long time since after filing of the written statement
- On facts, neither the requirements of Or.VIII, r.6-A or r.95 of the
Rules nor the principles enunciated and explained in Ashok Kumar
Kalra v. Wing Cdr. Surendra Agnihotri and Ors. reported as [2019] 17
SCR 214 operate as a bar over the prayer of the appellant for taking
the belatedly filed counter-claim on record, which was indeed filed
before framing of issues - Further, impact of the order dtd.26.02.21
passed by Supreme Court (in relation to the incidental proceedings
pertaining to the suit) on the procedural aspect concerning pleadings
has clearly been that existence of the counter-claim on record was
taken by this Court as a fait accompli, and this order left a little,
rather nil, scope for upsetting the existing pleadings - Also, in this
order, Supreme Court emphasised for expeditious proceedings -
There was no reason for re-opening of the question relating to the
filing of counter-claim after the said order - Even when the said
order was placed before the Division Bench, it did not consider its
purport and meaning as also its impact on the suit proceedings and
on the question of filing of counter-claim and proceeded in a rather
cursory manner in directing reconsideration of the prayer of the
appellant for taking the counter-claim on record - It did not consider
the relevant aspects of the proceedings in the suit and the law
applicable thereto as also without considering the likely impact of
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its order on the proceedings, which had already taken place and
which were under progress - Order passed by the Division Bench is
set aside while that of the Single Judge is restored - Pleadings.
Allowing the appeal, the Court
HELD: 1.1 In order dated 26.02.2021, this Court took note
of the submissions made by the parties, including the anxiety of
the appellant to dispose of the property in view of his advanced
age as also the undertaking of the prospective purchasers to abide
by the outcome of the suit. After interacting with the learned
counsel for the concerned parties, this Court passed the order
delineating the conditions agreed upon by the appellant and the
prospective purchasers. This Court also took note of the
apprehension expressed on behalf of the plaintiffs-respondents
about the legal heirs of the appellant later on claiming rights in
the property and counter submissions in this regard on behalf of
the appellant. Thus, having settled the matter relating to the
prayer of the appellant for leave to transfer the right, title and
interest in the property in question, this Court expected all the
parties to extend the co-operation in early disposal of the suit as
already directed by the Division Bench of the High Court. [Para
6][578-E-H; 579-A]
1.2 The rules of procedure are intended to subserve the
cause of justice rather than to punish the parties in conduct of
their case. The counter-claim in question could not have been
removed out of consideration merely because it was presented
after a long time since after filing of the written statement.
Indisputably, the counter-claim was filed on 07.09.2018 and until
that date, issues had not been framed in the suit. In fact, the
issues were framed only on 05.12.2018, the very date on which
the learned Single Judge in the first round of these proceedings
took the counter-claim off the

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[2022] 16 S.C.R. 565
565
MAHESH GOVINDJI TRIVEDI
v.
BAKUL MAGANLAL VYAS & ORS.
(Civil Appeal No. 7203 of 2022)
OCTOBER 12, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908 - Or.VIII, r.6-A - Counterclaim by defendant - Bombay High Court Rules - r.95 - Suit for
specific performance filed by respondent-plaintiff - Notice of motion
moved by the appellant-defendant to take the belatedly filed counterclaim on record, allowed by Single Judge - Order set aside by
Division Bench - On appeal, held: Rules of procedure are intended
to subserve the cause of justice rather than to punish the parties in
conduct of their case - The counter-claim in question could not
have been removed out of consideration merely because it was
presented after a long time since after filing of the written statement
- On facts, neither the requirements of Or.VIII, r.6-A or r.95 of the
Rules nor the principles enunciated and explained in Ashok Kumar
Kalra v. Wing Cdr. Surendra Agnihotri and Ors. reported as [2019] 17
SCR 214 operate as a bar over the prayer of the appellant for taking
the belatedly filed counter-claim on record, which was indeed filed
before framing of issues - Further, impact of the order dtd.26.02.21
passed by Supreme Court (in relation to the incidental proceedings
pertaining to the suit) on the procedural aspect concerning pleadings
has clearly been that existence of the counter-claim on record was
taken by this Court as a fait accompli, and this order left a little,
rather nil, scope for upsetting the existing pleadings - Also, in this
order, Supreme Court emphasised for expeditious proceedings -
There was no reason for re-opening of the question relating to the
filing of counter-claim after the said order - Even when the said
order was placed before the Division Bench, it did not consider its
purport and meaning as also its impact on the suit proceedings and
on the question of filing of counter-claim and proceeded in a rather
cursory manner in directing reconsideration of the prayer of the
appellant for taking the counter-claim on record - It did not consider
the relevant aspects of the proceedings in the suit and the law
applicable thereto as also without considering the likely impact of
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its order on the proceedings, which had already taken place and
which were under progress - Order passed by the Division Bench is
set aside while that of the Single Judge is restored - Pleadings.
Allowing the appeal, the Court
HELD: 1.1 In order dated 26.02.2021, this Court took note
of the submissions made by the parties, including the anxiety of
the appellant to dispose of the property in view of his advanced
age as also the undertaking of the prospective purchasers to abide
by the outcome of the suit. After interacting with the learned
counsel for the concerned parties, this Court passed the order
delineating the conditions agreed upon by the appellant and the
prospective purchasers. This Court also took note of the
apprehension expressed on behalf of the plaintiffs-respondents
about the legal heirs of the appellant later on claiming rights in
the property and counter submissions in this regard on behalf of
the appellant. Thus, having settled the matter relating to the
prayer of the appellant for leave to transfer the right, title and
interest in the property in question, this Court expected all the
parties to extend the co-operation in early disposal of the suit as
already directed by the Division Bench of the High Court. [Para
6][578-E-H; 579-A]
1.2 The rules of procedure are intended to subserve the
cause of justice rather than to punish the parties in conduct of
their case. The counter-claim in question could not have been
removed out of consideration merely because it was presented
after a long time since after filing of the written statement.
Indisputably, the counter-claim was filed on 07.09.2018 and until
that date, issues had not been framed in the suit. In fact, the
issues were framed only on 05.12.2018, the very date on which
the learned Single Judge in the first round of these proceedings
took the counter-claim off the record for no permission/leave
having been sought for its presentation. In appeal against the
order dated 05.12.2018, the Division Bench permitted filing of
the requisite application seeking permission to file the counterclaim, while taking note of the submissions of the plaintiffsrespondents that they will not raise an objection to such
application on the ground that the issues had already been framed
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and documentary evidence had been presented; and the Division
Bench expected the learned Single Judge to deal with such an
application on its own merits. Pursuant to the liberty so granted
by the Division Bench, the appellant moved the application
seeking permission to place the counterclaim on record and in
support thereof, filed a detailed affidavit stating specific reasons
for which the counter-claim was sought to be filed, including that
of avoiding the multiplicity of proceedings. The appellant also
pointed out the fact that he was earlier engaged in the dispute
concerning succession to the property, which came to be settled
in his favour only in the year 2017. The learned Single Judge,
while passing the order dated 02.05.2019, did not elaborate much
on the other aspects but pointed out the reason for accepting the
prayer of the appellant that it would avoid multiplicity of
proceedings; and in all fairness to the plaintiffs respondents, kept
all their defences, including as to limitation, specifically open.
The said order dated 02.05.2019, even if passed by the learned
Single Judge on the very first day of consideration of the
application moved by the appellant, had been a just and proper
order which was conducive to the proper progression of the
proceedings while avoiding multiplicity of litigation. There was
no justified reason for the Division Bench to have interfered with
the order so passed by the learned Single Judge. In the totality
of the facts and circumstances of the present case, neither the
requirements of Order VIII Rule 6-A CPC or Rule 95 of the
Rules nor the principles enunciated and explained in Ashok Kumar
Kalra operate as a bar over the prayer of the appellant for taking
the belatedly filed counter-claim on record, which was indeed filed
before framing of issues. [Paras 14, 14.1][589-D-H; 590-A-D]
Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri
and Ors. (2020) 2 SCC 394 : [2019] 17 SCR 214 -
relied on.
1.3 Apart from the above, there are a few other reasons,
for which the impugned order of the Division Bench to be wholly
unjustified. In the order dated 26.02.2021, this Court had provided
for expeditious proceedings while taking note of the submissions
of the parties and while ensuring that even if the appellant shall
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS.
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transfer his right, title and interest to third parties, such
transferees will not seek filing of further pleadings and shall
remain bound by the proceedings of the suit in question. In that
context, it was provided that the proposed purchasers shall be
impleaded in the suit; and their undertaking was also recorded
that they will adopt the written statement and counter-claim filed
by the appellant and will not make any request for filing further
written statements or independent written statement as such.
This Court further provided that the suit shall proceed from the
stage where it was pending and the proposed purchasers will not
move any application for filing independent evidence/document.
[Paras 15, 15.1][590-E-H]
1.4 True it is, as contended on behalf of the respondents,
that the subject matter of the said SLP before this Court was of
the proposition of the appellant to transfer the suit property to a
third party and not regarding the permissibility to file counterclaim but, for this reason alone the substance and impact of the
order passed by this Court is not whittled down. Even when the
subject matter of the said SLP related to the proposition of the
appellant to transfer the suit property to a third party and even
when the arrangement provided by the order dated 26.02.2021
was essentially concerning the defendant-appellant and the
prospective transferees, fact of the matter remains that the said
order was passed in the presence of the plaintiffs-respondents,
whose apprehension of a different nature, about the likely claims
in future by the legal heirs of the appellant, was also taken note
of with its response on behalf of the appellant. This Court,
thereafter, re-emphasised the requirements of expeditious
proceedings. When construed on its pith and substance, the
impact of the said order dated 26.02.2021 on the procedural aspect
concerning pleadings has clearly been that existence of the
counter-claim on record was taken by this Court as a fait accompli;
and this order left a little, rather nil, scope for upsetting the
existing pleadings. The expectations had been that the
proceedings in the suit coupled with the counter-claim shall be
taken forward from the given stage onwards. [Paras 15.2 and
15.3][590-H; 591-A-D]
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1.5 Even when this Court's order dated 26.02.2021 was
placed before it, the Division Bench of the High Court did not
consider its purport and meaning as also its impact on the suit
proceedings and on the question of filing of counter-claim. There
was no reason for re-opening of the question relating to the filing
of counter-claim after the said order of this Court dated
26.02.2021. Apart from this, on the date on which the Division
Bench chose to upset the proceedings of the suit in question by
setting aside the order dated 02.05.2019, much progression had
taken place, including the filing of written statement by the
plaintiffs to such counter-claim; framing of issues on the counterclaim; and recording of the plaintiffs' evidence. Moreover,
expeditious proceedings were required to be ensured by all the
concerned, in view of the earlier orders passed by the Division
Bench of the High Court as also by this Court. It appears that
the Division Bench of the High Court, while passing the impugned
order dated 30.11.2021, proceeded in a rather cursory manner in
directing reconsideration of the prayer of the appellant for taking
the counter-claim on record without considering the relevant
aspects of the proceedings in the suit and the law applicable
thereto as also without considering the likely impact of its order
on the proceedings, which had already taken place and which
were under progress. Viewed from any angle, the impugned order
deserves to be set aside. The impugned order dated 30.11.2021
as passed by the Division Bench of the High Court is set aside;
and order dated 02.05.2019 as passed by the learned Single Judge
is restored. [Paras 15.4, 16, 16.1, 19][591-E-H; 592-A-B, E]
Case Law Reference
[2019] 17 SCR 214
relied on
Para 9.2
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7203
of 2022.
From the Judgment and Order dated 30.11.2021 of the High Court
of Judicature at Bombay in Appeal No.10 of 2020 in Notice of Motion
(L) No.1014 of 2019 in Suit No.1821 of 2004.
Shyam Divan, Shekhar Naphade, Sr. Advs., Yadunath Chaudhari,
Kunal Cheema, Apoorv Shukla, Adith Deshmukh, Mahesh Trivedi,
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS.
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Omkar Kulkarni, Ms. Ruchita Kunal Cheema, Ms. Aditi Deshpande
Parkhi, Sabir Kachhi, Mahesh Agarwal, Rishi Agarwala, Ankur Saigal,
Rohan Talwar, Shashwat Singh, E. C. Agrawala, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Leave granted.
2. This appeal by the defendant in a pending suit for specific
performance (Suit No. 1821 of 2004) is directed against the judgment
and order dated 30.11.2021, as passed by the Division Bench of the
High Court of Judicature at Bombay in Appeal No. 10 of 2020 arising
from an order dated 02.05.2019 in Notice of Motion (L) No. 1014 of
2019 in the said suit.
2.1. By the said order dated 02.05.2019, the learned Single Judge
of the High Court dealing with the trial of suit in question, had accepted
the notice of motion moved by the defendant-appellant so as to take the
belatedly filed counter-claim on record. The Division Bench of the High
Court has, however, set aside the order so passed by the Single Judge
and has remitted the matter for consideration afresh, essentially on the
ground that the plaintiffs were not afforded adequate opportunity to file
reply and to contest the said notice of motion.
3. In this appeal, the main plank of submissions on behalf of the
defendant-appellant is that in view of the order dated 26.02.2021 as
passed by this Court in relation to the incidental proceedings pertaining
to the same suit, the proceedings in question need to progress with the
counter-claim on record; and, in any case, there was no justification for
the Division Bench interfering with the considered order of the Single
Judge taking the counter-claim on record. On the other hand, it is submitted
on behalf of the plaintiffs-respondents that the Division Bench of the
High Court has rightly interfered because the order dated 02.05.2019
was passed by the Single Judge without giving opportunity to the plaintiffsrespondents to contest the notice of motion; and in the true operation of
the applicable rules of procedure, the counter-claim in question, which
was filed nearly 13 years after filing of the written statement, could not
have been taken on record, particularly when there had not been a
semblance of reason for such a gross and inordinate delay.
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3.1. Thus, the short question calling for determination in this appeal
is as to whether the Division Bench of the High Court has been justified
in interfering with the order passed by the Single Judge for taking the
counter-claim on record.
4. Apropos the foregoing outline and the short question involved,
the background aspects of the matter could be noticed in brief, and only
to the extent relevant for the present purpose.
4.1. In relation to the suit property situated at Vile Parley, Dadabhai
Road, Mumbai, the plaintiffs-respondents have filed the suit in question
bearing No. 1821 of 2004 on 10.06.2004, seeking specific performance
of an alleged agreement for transfer dated 28.05.2001, said to have
been executed by its owner, late Ramalaxmi Ravishankar Trivedi, who
was the sister of the appellant and who expired on 31.01.2004. In the
said suit, apart from the appellant, other legal heirs of the deceased
owner were also arrayed as defendants. The appellant filed his written
statement in the suit on 16.11.2005.
4.2. It has been pointed by the appellant that he had acquired all
the rights in the suit property by testamentary succession and by
settlement with the said other legal heirs of the deceased owner.
According to the appellant, the matter relating to his succession to the
suit property ultimately got settled only on 05.04.2017. Thereafter, on
16.01.2018, for the appellant having acquired ownership rights in the suit
property, Chamber Summons (L) No. 559 of 2017 was filed in order to
delete other defendants from Suit No. 1821 of 2004; the said chamber
summons was allowed and the defendant Nos. 1,2,4, & 5 were deleted
from the array of parties.
4.3. Thereafter, on 07.09.2018, the defendant-appellant filed his
counter-claim (signed on 18.08.2018) in this suit in the registry of the
High Court. When the suit was taken up for framing of issues on
05.12.2018, the learned Single Judge of the High Court dealing with the
suit took objection against such filing of counter-claim much after the
defendant had entered his written statement and without taking leave of
the Court, particularly with reference to Rule 95 of the Bombay High
Court (Original Side) Rules1. The learned Single Judge, therefore, ordered
that the counter-claim be de-registered and be returned to the counsel
for the appellant. The counsel representing the defendant-appellant sought
1 'the Rules', for short.
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS. [DINESH MAHESHWARI, J.]
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leave to file an appropriate application for liberty to file the counterclaim. The learned Single Judge declined this prayer, lest it was construed
as some sort of permission for filing the counter-claim belatedly.
Thereafter, the learned Single Judge framed the issues that very day
(05.12.2018) and the matter was posted for evidence. For its relevance,
we may reproduce the contents of the order so passed by the learned
Single Judge on 05.12.2018 as under: -
"1. The suit is for framing issues. Defendant No. 3, the sole
surviving Defendant entered his Written Statement on 16th
November 2005. It appears that, entirely contrary to the provisions
of Rule 95 of the Bombay High Court (Original Side) Rules, the
3rd Defendant has very recently purported to lodge a CounterCounter- Claim. In some fashion that I am wholly unable to
comprehend, the 3rd Defendant has, without prior leave of the
Court, got a lodging number for the Counter-Claim.
2. Rule 95 is in pari material with Order VIII Rule 6-A of the
Code of Civil Procedure, 1908 ("CPC"). Both say that a CounterClaim proceeds like a cross-suit. This means that, exactly as in
the case of a plaint, every Counter-Claim is also subject to issues
of statutory limitation. But in addition, Counter-Claims are subject
to a further stipulation not applicable to a suit. Both Rule 95 and
Order VIII Rule 6-A specify an outer limit beyond which no
Counter-Claim can be filed. In other words, it is not open to a
defendant to file a Counter-Claim at any time that defendant
chooses. It must be filed along with the defence or before the
time limited for filing the defence has expired. In no view of the
matter could the 3rd Defendant have lodged any Counter-Claim
in 2018.
3. The Registry is not to accept Counter-Claims in this manner
contrary to the express wording of Rule 95 of the Bombay High
Court (Original Side) Rules without an order of the Court. It is not
even to accept a Counter-Claim for presentation or lodging beyond
the time prescribed in Rule 95.
4. The existing Counter-Claim (L) No. 186 of 2018 will be deregistered and returned to the Advocate for Defendant No. 3
forthwith.
5. Mr Tamboly seeks leave to file an appropriate application for
liberty to file a Counter-Claim. I cannot grant any such leave, lest
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it be construed as some sort of permission or a finding that a
Counter-Claim can be filed well after the time period set out in
Rule 95. I am therefore neither granting or refusing leave.
6. There is also a pending Notice of Motion by the 3rd Defendant,
Notice of Motion No. 1713 of 2018. The Additional Affidavit in
Support of that Notice of Motion is to be filed in the Registry on
or before 7th December 2018. Affidavit in Reply by the Plaintiff
is to be filed and served on or before 1st February 2019. No
Rejoinder is to be filed without leave of the Court.
7. List Notice of Motion for hearing and final disposal on 6th
February 2019.
8. The Suit is taken up for framing issues. Issues are framed and
these are appended to this order.
9. The Plaintiffs shall, on or before 18th January 2019 file (i) the
Evidence Affidavit of the Plaintiff; (ii) an Affidavit of Documents;
and (iii) a Compilation of Documents duly indexed and paginated.
Copies of each of these will be served on the Advocates for the
Defendants on or before that date.
10. Discovery and inspection are to be completed and statements
of admission and denial are to be exchanged on or before 1st
February 2019.
11. There will be no extension of time. In default of compliance,
the suit will stand dismissed without further reference to the Court.
12. On the Plaintiffs complying with these directions, the matter
will be taken up for marking of the Plaintiffs' documents and further
directions on 8th February 2019 irrespective of the caption under
which the matter appears.
13. The Plaintiffs are not to tender original documents and are
required to file and serve a compilation of authenticated copies.
The Plaintiffs agree and undertake to preserve the originals and
produce it in Court as and when required until final disposal of the
Suit.
14. It is clarified that all subsequent events, i.e., those after the
filing of the suit may be referred to in the Affidavit in lieu of
Examination-in-Chief of either side."
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS. [DINESH MAHESHWARI, J.]
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4.4. The defendant-appellant challenged the aforesaid order dated
05.12.2018 in an intra-court appeal. In the said appeal, it was submitted
on behalf of the appellant that an appropriate application seeking leave
to present the counter-claim shall be filed to which, the learned counsel
appearing for the plaintiffs-respondents submitted that the appropriate
application could be dealt with by the Single Judge on its own merits and
the plaintiffs-respondents will not raise objection to the application seeking
such leave on the ground that the issues had already been framed and
documentary evidence presented. In view of the submissions so made,
the Division Bench of the High Court, by its order dated 29.03.2019,
granted permission to the appellant to file the necessary application within
two weeks, while leaving it open for the Single Judge to decide the same
on its own merits on consideration of objections that might be raised by
the plaintiffs. The relevant contents of order so passed by the Division
Bench of the High Court on 29.03.2019 read as under: -
"1] The appellant is objecting to the order passed by the learned
Single Judge dated 5th December, 2018 in Notice of Motion
No.1713 of 2018 in Suit No.1821 of 2004 directing the deregistration and return of counter claim (L) No.186 of 2018
presented by the appellant - original defendant no.3. The counter
claim has been returned back essentially for the reason that the
application seeking leave has not been presented by the appellant.
2] The learned Senior Counsel appearing for the appellant states
that he will tender an appropriate application seeking leave to
present the counter claim. Learned counsel appearing for the
Respondent contends that if appropriate application is presented,
the same can be dealt with on its own merits and appropriate
order can be passed by the learned Single Judge dealing with Suit
and that the Respondent - original plaintiff will not raise the objection
to the application seeking leave on the ground that the issues have
already been framed and documentary evidence has been
presented.
3] Without considering merits of the controversy, we permit the
appellant herein - original defendant to present an application
seeking leave, together with counter claim in Suit No.1824 of 2004.
If the appellant-original defendant presents an application seeking
leave within a period of two weeks from today, the learned Single
Judge may consider and decide the same, on consideration of the
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objections those may be raised by the respondent-original plaintiff
on its own merits and in accordance with law. In view of the
above, the appeal stands disposed of. In view of disposal of the
appeal, pending Notice of Motion does not survive and stands
disposed of."
4.5. In view of the liberty so given by the Division Bench, the
appellant filed Notice of Motion (L) No. 1014 of 2019 (later numbered
as Notice of Motion No. 1547 of 2019) seeking leave to file the counterclaim claiming possession of the suit property. A copy of the affidavit
filed in support of this notice of motion has been placed before us wherein
the appellant has stated the reason and basis of his filing counter-claim
to avoid multiplicity of proceedings without altering the nature of the suit
in question; and has also pointed out that the counter-claim was filed
before framing of issues and only after he became entitled to the suit
property upon finalisation of the dispute relating to succession. The
appellant, inter alia, stated in this affidavit as under: -
"17. I say that I have therefore filed the present notice of motion
seeking leave of this Hon'ble court to file the Counter claim for
effective adjudication of disputes between the parties. In view of
following reasons
a. The suit is for specific performance of the agreement dated
28th May 2001, clause no. 4 of the suit agreement clearly records
that the Plaintiffs were put in vacant and peaceful possession
upon execution of the agreement.
b. In the event the above suit is dismissed by this Hon'ble court,
then this Defendant would be entitled to seek vacant and peaceful
possession from the Plaintiff which the plaintiffs are enjoying under
the Suit Agreement and hence the Counter Claim seeking vacant
possession of the suit property is necessary to avoid multiplicity
of proceedings and to avoid delay.
c. The claim of possession is not Barred by limitation, As this
defendant would be entitled to seek possession only upon dismissal
of the suit and both issues can be decided together simultaneously.
As of today the Plaintiff is claiming possession of the Suit Property
under the suit agreement and not either adverse possession or
illegal trespass. My counterclaim claiming possession of the suit
property is based on my title to the suit property. I am a lawful
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS. [DINESH MAHESHWARI, J.]
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[2022] 16 S.C.R.
owner of the suit property. My right to recover possession of the
suit property will start from the date the plaintiff refuses to hand
over the possession and/or claims adverse possession of the suit
property. In these circumstances my claim of possession in the
suit property is not barred by law of limitation.
d. That the counter claim was filed prior to framing of the issues
in the above suit.
e. This Defendant became entitled to the suit property only upon
settlement of disputed between the legal heirs of Smt. Ramalaxmi
Trivedi and finalization of the probate in 2017.
f. This Defendant or the original defendants never made any
attempts to delay the proceedings and on the contrary after this
defendant obtained probate, this defendant took steps to get the
hearing of the above suit and the suit was proceeded till the framing
of issues and filing of affidavit of evidence along with the
compilation of documents.
g. The counter claim will not materially change the nature of the
suit and only additional issues will be required to be framed so
that both the counter claim and the suit can be decided together.
f. Permitting this defendant to file the counter claim will not cause
any prejudice to the plaintiff as there will not be any change of
cause of action in the suit and the Counter claim is only in the
nature consequential reliefs."
4.6. While considering this notice of motion, the learned Single
Judge felt satisfied to grant leave to file the counter-claim, particularly to
avoid multiplicity of proceedings. Therefore, by the order dated
02.05.2019, the learned Single Judge made the notice of motion absolute
with the clarification that all the defences of the plaintiff, including as to
limitation were kept open. In fact, the learned counsel appearing for the
plaintiffs also waived service of the writ of summons of the counterclaim and agreed that the written statement (to the counter-claim) shall
be filed before 21.06.2019. The relevant contents of this order dated
02.05.2019 read as under: -
"1. The Suit is for specific performance. The Defendant filed a
Written Statement on 16th November 2005. He did not file any
Counter Claim. Leaving aside the very many interim orders, on
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5th December 2018 the suit was notified for framing issues. I
found that the Defendant had purported to lodge a Counter Claim.
I held that Rule 95 of the Bombay High Court (Original Side)
Rules is in pari materia with the provisions of Order VIII Rule 6A of the Code of Civil Procedure 1908. If a Counter Claim was
not filed before the Defendant delivered its defence, then leave
of the Court would be required. In paragraph 3 of my order of 5th
December 2018, on an interpretation of Rule 95 of the Bombay
High Court (Original Side) Rules, I held that the Counter Claim
required an order of the Court. I directed the existing Counter
Claim to be returned. The Defendant carried the matter in Appeal.
The appellate order of 29th March 2019, without going in to the
merits permitted the Defendant to present an application seeking
leave along with the Counter Claim. This Motion is that application.
It seeks precisely that leave under Order 8 Rule 6-A and Rule 95
read with Order VIII Rule 9 of the Code of Civil Procedure 1908.
2. This having been done, I can see no reason to refuse the leave.
The defendant could as well have instituted a separate suit. Had
he done so, the cross suit would have been tagged with the present
suit. The subject matter of the two suits is the same. The Counter
Claim will serve as a convenient method of disposing of both rival
claims together and possibly even with common evidence, thus
preventing multiplicity of proceedings. The Defendant has also to
pay the full Court fee on the Counter Claim.
3. In these circumstances, the Notice of Motion is made absolute
in terms of prayer clause (a) with a clarification that all defences
of the Plaintiff including as to limitation are specifically kept open.
The Counter Claim has already been lodged. It will be numbered
within a week from today. A copy has been served.
4. The Plaintiff waives service of the Writ of Summons of the
Counter Claim. She agrees that the Written Statement will be
filed and served on or before 21st June 2019."
4.7. The aforementioned order dated 02.05.2019 was challenged
by the plaintiffs-respondents an intra-court appeal that has been
considered and allowed by the impugned order dated 30.11.2021. Before
adverting to the contents of the impugned order dated 30.11.2021, it
shall be worthwhile to take note of the other incidental and ancillary
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS. [DINESH MAHESHWARI, J.]
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
proceedings in the course of the trial of this suit after passing of the said
order dated 02.05.2019.
5. On 28.06.2019, the plaintiffs-respondents sought extension of
time for filing written statement to the counter-claim, which was granted
and the matter was adjourned to 11.07.2019. Then, on 09.07.2019, the
written statement to the counter-claim was filed by the plaintiffsrespondents. However, before further progress of the matter, the appellant
filed Notice of Motion No. 2601 of 2019 on 18.09.2019, seeking leave to
transfer right, title and interest in the suit property to third parties. This
notice of motion was dismissed on 21.01.2020. Thereafter, on 28.01.2020,
issues were framed on the counter-claim; examination-in-chief of PW1 and marking of documents was completed; and commissioner was
appointed to record the cross-examination of PW-1. The proceedings of
commission for recording cross-examination were held from 05.02.2020
onwards. In the meantime, the appellant preferred intra-court appeal
against the aforesaid order dated 21.01.2020, being Appeal No. 67 of
2020. This appeal was considered and disposed of by the Division Bench
of the High Court on 20.01.2021 providing for expeditious disposal of
the suit but not granting the prayer of the appellant, for leave to transfer
the property in question during the pendency of the suit. Being aggrieved,
the appellant approached this Court by filing a petition for Special Leave
to Appeal2, being SLP (C) No. 1786 of 2021.
6. The order passed by this Court on 26.02.2021 in disposal of the
said SLP (C) No. 1786 of 2021 is of bearing in the present appeal in
view of the submissions made before us and, therefore, it would be
appropriate to take note of the salient features and the relevant contents
thereof in necessary detail. Therein, this Court took note of the
submissions made by the parties, including the anxiety of the appellant to
dispose of the property in view of his advanced age as also the undertaking
of the prospective purchasers to abide by the outcome of the suit. After
interacting with the learned counsel for the concerned parties, this Court
passed the order delineating the conditions agreed upon by the appellant
and the prospective purchasers. This Court also took note of the
apprehension expressed on behalf of the plaintiffs-respondents about
the legal heirs of the appellant later on claiming rights in the property and
counter submissions in this regard on behalf of the appellant. Thus, having
settled the matter relating to the prayer of the appellant for leave to
2 'SLP', for short.
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transfer the right, title and interest in the property in question, this Court
expected all the parties to extend the co-operation in early disposal of
the suit as already directed by the Division Bench of the High Court.
The order so passed by this Court on 26.02.2021 reads as under: -
"A peculiar issue arises for our consideration. The petitioner had
approached the High Court by way of Notice of motion No. 2601
of 2019 in Suit No. 1821/2004, in which the petitioner is defendant,
for limited relief of permitting the petitioner to dispose of the suit
property without prejudice to the rights and contentions of the
respondent(s)-plaintiff(s) as he had already reached the advanced
age (87 years) and wanted to settle all his issues at the earliest
possible opportunity.
The Single Judge declined to grant that relief to the petitioner, so
also the Division Bench vide impugned judgment and order. The
Division Bench, however, thought it appropriate to expedite the suit
pending since 2004 and issued suitable directions in that regard.
The grievance of the petitioner is that although the suit is directed
to be disposed of expeditiously, it is unlikely that the litigation would
finally end in the near future. Considering the advanced age of
the petitioner, therefore, it may not be just and proper to keep the
petitioner waiting for the outcome of the proceedings, especially
when the petitioner as well as the third party-proposed purchasers
are willing to abide by the outcome of the pending suit and also
give necessary undertaking within two weeks from today, including
to indemnify the respondent(s)-plaintiff(s), if and when occasion
arises.
Considering this submission, we called upon the petitioner to
give notice to the proposed purchasers. They are represented
through Mr. Gopal Shankaranarayanan, learned senior counsel
instructed by Mr. Ajit Wagh, learned counsel.
On the oral request made by the learned counsel for the
petitioner, we permit the petitioner to implead the proposedpurchasers as party respondents in these proceedings. Amendment
be carried out forthwith.
After interacting with the counsel for the concerned parties,
we record the agreement reached between them and dispose of
this petition on that basis.
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS. [DINESH MAHESHWARI, J.]
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It is agreed, in principle, by all concerned that the proposed
sale of the suit property by the petitioner be made subject to the
outcome of the pending Suit No.1821/2004 and without prejudice
to the rights and contentions of the respondent(s)-plaintiff(s), in
any manner.
The conditions agreed upon by the petitioner and the proposed
purchasers (added respondents) are delineated as follows: -
(a) The transfer deed in respect of suit property between the
petitioner and proposed purchasers (added respondents) shall be
executed within three weeks in the name of "AMAR LIFESPACES
LLP", a family firm and the three partners thereof, namely, Dinesh
Joshi and his two sons (i) Gaurav Joshi and (ii) Hemang Joshi.
(b) The original deed to be so executed shall be submitted by the
petitioner and the proposed purchasers (added respondents) in
the High Court and would continue to abide by the orders of the
High Court in that regard.
(c)The petitioner and the proposed purchasers (added
respondents) undertake that they shall not create any third party
right, title or interest in the suit property or indulge in further
alienation thereof.
(d) The petitioner as well as the proposed purchasers (added
respondents) shall file an undertaking within two weeks from today
in this Court and also indemnity bond so as to fully secure the
interest of the respondent(s)-plaintiff(s) with regard to the right,
title and interest of the suit property including to indemnify in
respect of legal expenses to be incurred and liability of damages
in that regard in any future litigation. (This indemnity is not
applicable to the pending litigation between the petitioner and
respondents and now the added respondents, namely suit No. 1821/
2004. In other words, the parties will bear their own legal expenses
in respect of the present suit proceedings.).
(e)The proposed purchasers (added respondents) shall be
impleaded in the suit pending before the High Court, who in turn
undertake to adopt the written statement and counter claim filed
by the petitioner in Suit No.1821/2004 as it is. They will not make
any request for filing further written statements or independent
written statement as such.
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(f) The suit shall proceed from the stage where it is presently
pending and the proposed purchasers (added respondents) will
not move any application for filing independent evidence/document.
(g) Neither the petitioners nor the proposed purchasers (added
respondents) will approach the occupants of the suit property either
directly or indirectly or through their relatives and enter upon the
suit property.
(h) The petitioner as well as the proposed purchaser (added
respondents) shall not claim any equity in any respect and abide
by the outcome of the Suit No. 1821/2004.
(i) The proposed purchasers (added respondents) shall record in
the undertaking that they shall not transfer their share/change the
composition of the firm nor dissolve the firm during the pendency
of the suit.
Respondents-plaintiffs have expressed apprehension through
counsel that the legal heirs of the petitioner may later on claim
rights in the suit property, despite the sale in favour of the proposed
purchasers (added respondents). This plea is refuted by the learned
counsel for the petitioner on the argument that since the petitioner
is claiming right, title and interest in the suit property on the basis
of the will which stood probated in favour of the petitioner, the
question of legal heirs claiming any right or obstructing the
proposed transaction being entered into between the petitioner
and added respondents, does not arise; nor they can do so during
the life time of the petitioner.
Needless to observe that all parties including the newly added
respondents shall extend full cooperation for early disposal of the
suit as directed by the Division Bench of the High Court.
The special leave petition and pending applications are disposed
of in the above terms. Liberty is given to the parties to apply, if
necessary.
Registry is directed to accept the Vakalatnama/Appearance
to be filed by the advocate-on-record for the impleaded/newly
added party within one week from today."
7. Thereafter, while the suit in question had been proceeding in
evidence, the said intra-court appeal bearing No. 10 of 2020, which was
MAHESH GOVINDJI TRIVEDI v. BAKUL MAGANLAL VYAS
& ORS.