MAHESH GOVINDJI TRIVEDI versus BAKUL MAGANLAL VYAS & ORS. on 12 October 2022

[2022] 16 S.C.R. 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 – Counter-claim by defendant – Bombay High Court Rules – r.95 – Suit forspecific performance filed by respondent-plaintiff – Notice of motionmoved by the appellant-defendant to take the belatedly filed counter-claim on record, allowed by Single Judge – Order set aside byDivision Bench – On appeal, held: Rules of procedure are intendedto subserve the cause of justice rather than to punish the parties inconduct of their case – The counter-claim in question could nothave been removed out of consideration merely because it waspresented 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 theRules nor the principles enunciated and explained in Ashok KumarKalra v. Wing Cdr. Surendra Agnihotri and Ors. reported as [2019] 17SCR 214 operate as a bar over the prayer of the appellant for takingthe belatedly filed counter-claim on record, which was indeed filedbefore framing of issues – Further, impact of the order dtd.26.02.21passed by Supreme Court (in relation to the incidental proceedingspertaining to the suit) on the procedural aspect concerning pleadingshas clearly been that existence of the counter-claim on record wastaken by this Court as a fait accompli, and this order left a little,rather nil, scope for upsetting the existing pleadings – Also, in thisorder, Supreme Court emphasised for expeditious proceedings –There was no reason for re-opening of the question relating to thefiling of counter-claim after the said order – Even when the saidorder was placed before the Division Bench, it did not consider itspurport and meaning as also its impact on the suit proceedings andon the question of filing of counter-claim and proceeded in a rathercursory manner in directing reconsideration of the prayer of theappellant for taking the counter-claim on record – It did not considerthe relevant aspects of the proceedings in the suit and the lawapplicable thereto as also without considering the likely impact of

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Aits order on the proceedings, which had already taken place andwhich were under progress – Order passed by the Division Bench isset 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 noteBof the submissions made by the parties, including the anxiety ofthe appellant to dispose of the property in view of his advancedage as also the undertaking of the prospective purchasers to abideby the outcome of the suit. After interacting with the learnedcounsel for the concerned parties, this Court passed the orderCdelineating the conditions agreed upon by the appellant and theprospective purchasers. This Court also took note of theapprehension expressed on behalf of the plaintiffs-respondentsabout the legal heirs of the appellant later on claiming rights inthe property and counter submissions in this regard on behalf ofthe appellant. Thus, having settled the matter relating to theDprayer of the appellant for leave to transfer the right, title andinterest in the property in question, this Court expected all theparties to extend the co-operation in early disposal of the suit asalready directed by the Division Bench of the High Court. [Para6][578-E-H; 579-A]

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1.2 The rules of procedure are intended to subserve thecause of justice rather than to punish the parties in conduct oftheir case. The counter-claim in question could not have beenremoved out of consideration merely because it was presentedafter a long time since after filing of the written statement.FIndisputably, the counter-claim was filed on 07.09.2018 and untilthat date, issues had not been framed in the suit. In fact, theissues were framed only on 05.12.2018, the very date on whichthe learned Single Judge in the first round of these proceedingstook the counter-claim off the record for no permission/leavehaving been sought for its presentation. In appeal against theGorder dated 05.12.2018, the Division Bench permitted filing ofthe requisite application seeking permission to file the counter-claim, while taking note of the submissions of the plaintiffs-respondents that they will not raise an objection to suchapplication on the ground that the issues had already been framed H

and documentary evidence had been presented; and the DivisionBench expected the learned Single Judge to deal with such anapplication on its own merits. Pursuant to the liberty so grantedby the Division Bench, the appellant moved the applicationseeking permission to place the counterclaim on record and insupport thereof, filed a detailed affidavit stating specific reasonsfor which the counter-claim was sought to be filed, including thatof avoiding the multiplicity of proceedings. The appellant alsopointed out the fact that he was earlier engaged in the disputeconcerning succession to the property, which came to be settledin his favour only in the year 2017. The learned Single Judge,while passing the order dated 02.05.2019, did not elaborate muchon the other aspects but pointed out the reason for accepting theprayer of the appellant that it would avoid multiplicity ofproceedings; and in all fairness to the plaintiffs respondents, keptall their defences, including as to limitation, specifically open.The said order dated 02.05.2019, even if passed by the learnedSingle Judge on the very first day of consideration of theapplication moved by the appellant, had been a just and properorder which was conducive to the proper progression of theproceedings while avoiding multiplicity of litigation. There wasno justified reason for the Division Bench to have interfered withthe order so passed by the learned Single Judge. In the totalityof the facts and circumstances of the present case, neither therequirements of Order VIII Rule 6-A CPC or Rule 95 of theRules nor the principles enunciated and explained in Ashok KumarKalra operate as a bar over the prayer of the appellant for takingthe belatedly filed counter-claim on record, which was indeed filedbefore framing of issues. [Paras 14, 14.1][589-D-H; 590-A-D]

Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotriand 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 whollyunjustified. In the order dated 26.02.2021, this Court had providedfor expeditious proceedings while taking note of the submissionsof the parties and while ensuring that even if the appellant shall A

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Atransfer his right, title and interest to third parties, suchtransferees will not seek filing of further pleadings and shallremain bound by the proceedings of the suit in question. In thatcontext, it was provided that the proposed purchasers shall beimpleaded in the suit; and their undertaking was also recordedthat they will adopt the written statement and counter-claim filedBby the appellant and will not make any request for filing furtherwritten statements or independent written statement as such.This Court further provided that the suit shall proceed from thestage where it was pending and the proposed purchasers will notmove any application for filing independent evidence/document.C[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 ofthe proposition of the appellant to transfer the suit property to athird party and not regarding the permissibility to file counter-Dclaim but, for this reason alone the substance and impact of theorder passed by this Court is not whittled down. Even when thesubject matter of the said SLP related to the proposition of theappellant to transfer the suit property to a third party and evenwhen the arrangement provided by the order dated 26.02.2021Ewas essentially concerning the defendant-appellant and theprospective transferees, fact of the matter remains that the saidorder was passed in the presence of the plaintiffs-respondents,whose apprehension of a different nature, about the likely claimsin future by the legal heirs of the appellant, was also taken noteof with its response on behalf of the appellant. This Court,Fthereafter, re-emphasised the requirements of expeditiousproceedings. When construed on its pith and substance, theimpact of the said order dated 26.02.2021 on the procedural aspectconcerning pleadings has clearly been that existence of thecounter-claim on record was taken by this Court as a fait accompli;Gand this order left a little, rather nil, scope for upsetting theexisting pleadings. The expectations had been that theproceedings in the suit coupled with the counter-claim shall betaken forward from the given stage onwards. [Paras 15.2 and15.3][590-H; 591-A-D]H

1.5 Even when this Court’s order dated 26.02.2021 wasplaced before it, the Division Bench of the High Court did notconsider its purport and meaning as also its impact on the suitproceedings and on the question of filing of counter-claim. Therewas no reason for re-opening of the question relating to the filingof counter-claim after the said order of this Court dated26.02.2021. Apart from this, on the date on which the DivisionBench chose to upset the proceedings of the suit in question bysetting aside the order dated 02.05.2019, much progression hadtaken place, including the filing of written statement by theplaintiffs to such counter-claim; framing of issues on the counter-claim; and recording of the plaintiffs’ evidence. Moreover,expeditious proceedings were required to be ensured by all theconcerned, in view of the earlier orders passed by the DivisionBench of the High Court as also by this Court. It appears thatthe Division Bench of the High Court, while passing the impugnedorder dated 30.11.2021, proceeded in a rather cursory manner indirecting reconsideration of the prayer of the appellant for takingthe counter-claim on record without considering the relevantaspects of the proceedings in the suit and the law applicablethereto as also without considering the likely impact of its orderon the proceedings, which had already taken place and whichwere under progress. Viewed from any angle, the impugned orderdeserves to be set aside. The impugned order dated 30.11.2021as passed by the Division Bench of the High Court is set aside;and order dated 02.05.2019 as passed by the learned Single Judgeis restored. [Paras 15.4, 16, 16.1, 19][591-E-H; 592-A-B, E]

Case Law Reference

[2019] 17 SCR 214relied onPara 9.2

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7203of 2022.

From the Judgment and Order dated 30.11.2021 of the High Courtof 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,

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AOmkar Kulkarni, Ms. Ruchita Kunal Cheema, Ms. Aditi DeshpandeParkhi, Sabir Kachhi, Mahesh Agarwal, Rishi Agarwala, Ankur Saigal,Rohan Talwar, Shashwat Singh, E. C. Agrawala, Advs. for theappearing parties.

The Judgment of the Court was delivered by BDINESH MAHESHWARI, J.

Leave granted.

2. This appeal by the defendant in a pending suit for specificperformance (Suit No. 1821 of 2004) is directed against the judgmentCand order dated 30.11.2021, as passed by the Division Bench of theHigh Court of Judicature at Bombay in Appeal No. 10 of 2020 arisingfrom an order dated 02.05.2019 in Notice of Motion (L) No. 1014 of2019 in the said suit.

2.1. By the said order dated 02.05.2019, the learned Single JudgeDof the High Court dealing with the trial of suit in question, had acceptedthe notice of motion moved by the defendant-appellant so as to take thebelatedly filed counter-claim on record. The Division Bench of the HighCourt has, however, set aside the order so passed by the Single Judgeand has remitted the matter for consideration afresh, essentially on theground that the plaintiffs were not afforded adequate opportunity to fileEreply and to contest the said notice of motion.

3. In this appeal, the main plank of submissions on behalf of thedefendant-appellant is that in view of the order dated 26.02.2021 aspassed by this Court in relation to the incidental proceedings pertainingto the same suit, the proceedings in question need to progress with theFcounter-claim on record; and, in any case, there was no justification forthe Division Bench interfering with the considered order of the SingleJudge taking the counter-claim on record. On the other hand, it is submittedon behalf of the plaintiffs-respondents that the Division Bench of theHigh Court has rightly interfered because the order dated 02.05.2019was passed by the Single Judge without giving opportunity to the plaintiffs-Grespondents to contest the notice of motion; and in the true operation ofthe applicable rules of procedure, the counter-claim in question, whichwas filed nearly 13 years after filing of the written statement, could nothave been taken on record, particularly when there had not been asemblance of reason for such a gross and inordinate delay.H

3.1. Thus, the short question calling for determination in this appealis as to whether the Division Bench of the High Court has been justifiedin interfering with the order passed by the Single Judge for taking thecounter-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 onlyto the extent relevant for the present purpose.

4.1. In relation to the suit property situated at Vile Parley, DadabhaiRoad, Mumbai, the plaintiffs-respondents have filed the suit in questionbearing No. 1821 of 2004 on 10.06.2004, seeking specific performanceof an alleged agreement for transfer dated 28.05.2001, said to havebeen executed by its owner, late Ramalaxmi Ravishankar Trivedi, whowas the sister of the appellant and who expired on 31.01.2004. In thesaid suit, apart from the appellant, other legal heirs of the deceasedowner were also arrayed as defendants. The appellant filed his writtenstatement in the suit on 16.11.2005.

4.2. It has been pointed by the appellant that he had acquired allthe rights in the suit property by testamentary succession and bysettlement with the said other legal heirs of the deceased owner.According to the appellant, the matter relating to his succession to thesuit property ultimately got settled only on 05.04.2017. Thereafter, on16.01.2018, for the appellant having acquired ownership rights in the suitproperty, Chamber Summons (L) No. 559 of 2017 was filed in order todelete other defendants from Suit No. 1821 of 2004; the said chambersummons was allowed and the defendant Nos. 1,2,4, & 5 were deletedfrom the array of parties.

4.3. Thereafter, on 07.09.2018, the defendant-appellant filed hiscounter-claim (signed on 18.08.2018) in this suit in the registry of theHigh Court. When the suit was taken up for framing of issues on05.12.2018, the learned Single Judge of the High Court dealing with thesuit took objection against such filing of counter-claim much after thedefendant had entered his written statement and without taking leave ofthe Court, particularly with reference to Rule 95 of the Bombay HighCourt (Original Side) Rules[1]. The learned Single Judge, therefore, orderedthat the counter-claim be de-registered and be returned to the counselfor the appellant. The counsel representing the defendant-appellant sought 1 ‘the Rules’, for short.

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Aleave to file an appropriate application for liberty to file the counter-claim. The learned Single Judge declined this prayer, lest it was construedas 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 learnedBSingle Judge on 05.12.2018 as under: - “1. The suit is for framing issues. Defendant No. 3, the solesurviving Defendant entered his Written Statement on 16thNovember 2005. It appears that, entirely contrary to the provisionsof Rule 95 of the Bombay High Court (Original Side) Rules, the3rd Defendant has very recently purported to lodge a Counter-Counter- Claim. In some fashion that I am wholly unable tocomprehend, the 3rd Defendant has, without prior leave of theCourt, got a lodging number for the Counter-Claim.

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2. Rule 95 is in pari material with Order VIII Rule 6-A of theDCode of Civil Procedure, 1908 (“CPC”). Both say that a Counter-Claim proceeds like a cross-suit. This means that, exactly as inthe case of a plaint, every Counter-Claim is also subject to issuesof statutory limitation. But in addition, Counter-Claims are subjectto a further stipulation not applicable to a suit. Both Rule 95 andEOrder VIII Rule 6-A specify an outer limit beyond which noCounter-Claim can be filed. In other words, it is not open to adefendant to file a Counter-Claim at any time that defendantchooses. It must be filed along with the defence or before thetime limited for filing the defence has expired. In no view of thematter could the 3rd Defendant have lodged any Counter-ClaimFin 2018.

3. The Registry is not to accept Counter-Claims in this mannercontrary to the express wording of Rule 95 of the Bombay HighCourt (Original Side) Rules without an order of the Court. It is noteven to accept a Counter-Claim for presentation or lodging beyondthe time prescribed in Rule 95.

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4. The existing Counter-Claim (L) No. 186 of 2018 will be de-registered and returned to the Advocate for Defendant No. 3forthwith.

5. Mr Tamboly seeks leave to file an appropriate application forHliberty to file a Counter-Claim. I cannot grant any such leave, lest it be construed as some sort of permission or a finding that aCounter-Claim can be filed well after the time period set out inRule 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 inSupport of that Notice of Motion is to be filed in the Registry onor before 7th December 2018. Affidavit in Reply by the Plaintiffis to be filed and served on or before 1st February 2019. NoRejoinder is to be filed without leave of the Court.

7. List Notice of Motion for hearing and final disposal on 6thFebruary 2019.

8. The Suit is taken up for framing issues. Issues are framed andthese are appended to this order.

9. The Plaintiffs shall, on or before 18th January 2019 file (i) theEvidence 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 theDefendants on or before that date.

10. Discovery and inspection are to be completed and statementsof admission and denial are to be exchanged on or before 1stFebruary 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 matterwill be taken up for marking of the Plaintiffs’ documents and furtherdirections on 8th February 2019 irrespective of the caption underwhich the matter appears.

13. The Plaintiffs are not to tender original documents and arerequired to file and serve a compilation of authenticated copies.The Plaintiffs agree and undertake to preserve the originals andproduce it in Court as and when required until final disposal of theSuit.

14. It is clarified that all subsequent events, i.e., those after thefiling of the suit may be referred to in the Affidavit in lieu ofExamination-in-Chief of either side.”

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A4.4. The defendant-appellant challenged the aforesaid order dated05.12.2018 in an intra-court appeal. In the said appeal, it was submittedon behalf of the appellant that an appropriate application seeking leaveto present the counter-claim shall be filed to which, the learned counselappearing for the plaintiffs-respondents submitted that the appropriateapplication could be dealt with by the Single Judge on its own merits andBthe plaintiffs-respondents will not raise objection to the application seekingsuch leave on the ground that the issues had already been framed anddocumentary 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 withinCtwo weeks, while leaving it open for the Single Judge to decide the sameon its own merits on consideration of objections that might be raised bythe plaintiffs. The relevant contents of order so passed by the DivisionBench of the High Court on 29.03.2019 read as under: - “1] The appellant is objecting to the order passed by the learnedDSingle Judge dated 5th December, 2018 in Notice of MotionNo.1713 of 2018 in Suit No.1821 of 2004 directing the de-registration and return of counter claim (L) No.186 of 2018presented by the appellant – original defendant no.3. The counterclaim has been returned back essentially for the reason that theapplication seeking leave has not been presented by the appellant.E

2] The learned Senior Counsel appearing for the appellant statesthat he will tender an appropriate application seeking leave topresent the counter claim. Learned counsel appearing for theRespondent contends that if appropriate application is presented,the same can be dealt with on its own merits and appropriateForder can be passed by the learned Single Judge dealing with Suitand that the Respondent – original plaintiff will not raise the objectionto the application seeking leave on the ground that the issues havealready been framed and documentary evidence has beenpresented.

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3] Without considering merits of the controversy, we permit theappellant herein – original defendant to present an applicationseeking leave, together with counter claim in Suit No.1824 of 2004.If the appellant-original defendant presents an application seekingleave within a period of two weeks from today, the learned SingleHJudge may consider and decide the same, on consideration of the

objections those may be raised by the respondent-original plaintiffon its own merits and in accordance with law. In view of theabove, the appeal stands disposed of. In view of disposal of theappeal, pending Notice of Motion does not survive and standsdisposed of.”

4.5. In view of the liberty so given by the Division Bench, theappellant filed Notice of Motion (L) No. 1014 of 2019 (later numberedas Notice of Motion No. 1547 of 2019) seeking leave to file the counter-claim claiming possession of the suit property. A copy of the affidavitfiled in support of this notice of motion has been placed before us whereinthe appellant has stated the reason and basis of his filing counter-claimto avoid multiplicity of proceedings without altering the nature of the suitin question; and has also pointed out that the counter-claim was filedbefore framing of issues and only after he became entitled to the suitproperty upon finalisation of the dispute relating to succession. Theappellant, inter alia, stated in this affidavit as under: - “17. I say that I have therefore filed the present notice of motionseeking leave of this Hon’ble court to file the Counter claim foreffective adjudication of disputes between the parties. In view offollowing reasons a. The suit is for specific performance of the agreement dated28th May 2001, clause no. 4 of the suit agreement clearly recordsthat the Plaintiffs were put in vacant and peaceful possessionupon 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 peacefulpossession from the Plaintiff which the plaintiffs are enjoying underthe Suit Agreement and hence the Counter Claim seeking vacantpossession of the suit property is necessary to avoid multiplicityof proceedings and to avoid delay.

c. The claim of possession is not Barred by limitation, As thisdefendant would be entitled to seek possession only upon dismissalof the suit and both issues can be decided together simultaneously.As of today the Plaintiff is claiming possession of the Suit Propertyunder the suit agreement and not either adverse possession orillegal trespass. My counterclaim claiming possession of the suitproperty is based on my title to the suit property. I am a lawful A

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owner of the suit property. My right to recover possession of thesuit property will start from the date the plaintiff refuses to handover the possession and/or claims adverse possession of the suitproperty. In these circumstances my claim of possession in thesuit property is not barred by law of limitation.

d. That the counter claim was filed prior to framing of the issuesin the above suit.

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e. This Defendant became entitled to the suit property only uponsettlement of disputed between the legal heirs of Smt. RamalaxmiTrivedi and finalization of the probate in 2017.

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f. This Defendant or the original defendants never made anyattempts to delay the proceedings and on the contrary after thisdefendant obtained probate, this defendant took steps to get thehearing of the above suit and the suit was proceeded till the framingof issues and filing of affidavit of evidence along with thecompilation of documents.

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g. The counter claim will not materially change the nature of thesuit and only additional issues will be required to be framed sothat both the counter claim and the suit can be decided together.

f. Permitting this defendant to file the counter claim will not causeany prejudice to the plaintiff as there will not be any change ofcause of action in the suit and the Counter claim is only in thenature consequential reliefs.”

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4.6. While considering this notice of motion, the learned SingleJudge felt satisfied to grant leave to file the counter-claim, particularly toFavoid multiplicity of proceedings. Therefore, by the order dated02.05.2019, the learned Single Judge made the notice of motion absolutewith the clarification that all the defences of the plaintiff, including as tolimitation were kept open. In fact, the learned counsel appearing for theplaintiffs also waived service of the writ of summons of the counter-claim and agreed that the written statement (to the counter-claim) shallGbe filed before 21.06.2019. The relevant contents of this order dated02.05.2019 read as under: - “1. The Suit is for specific performance. The Defendant filed aWritten Statement on 16[th] November 2005. He did not file anyCounter Claim. Leaving aside the very many interim orders, on H

5[th] December 2018 the suit was notified for framing issues. Ifound 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 6-A of the Code of Civil Procedure 1908. If a Counter Claim wasnot filed before the Defendant delivered its defence, then leaveof the Court would be required. In paragraph 3 of my order of 5[th]December 2018, on an interpretation of Rule 95 of the BombayHigh Court (Original Side) Rules, I held that the Counter Claimrequired an order of the Court. I directed the existing CounterClaim to be returned. The Defendant carried the matter in Appeal.The appellate order of 29[th] March 2019, without going in to themerits permitted the Defendant to present an application seekingleave along with the Counter Claim. This Motion is that application.It seeks precisely that leave under Order 8 Rule 6-A and Rule 95read 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. Hadhe done so, the cross suit would have been tagged with the presentsuit. The subject matter of the two suits is the same. The CounterClaim will serve as a convenient method of disposing of both rivalclaims together and possibly even with common evidence, thuspreventing multiplicity of proceedings. The Defendant has also topay the full Court fee on the Counter Claim.

3. In these circumstances, the Notice of Motion is made absolutein terms of prayer clause (a) with a clarification that all defencesof the Plaintiff including as to limitation are specifically kept open.The Counter Claim has already been lodged. It will be numberedwithin a week from today. A copy has been served.

4. The Plaintiff waives service of the Writ of Summons of theCounter Claim. She agrees that the Written Statement will befiled and served on or before 21[st] June 2019.”

4.7. The aforementioned order dated 02.05.2019 was challengedby the plaintiffs-respondents an intra-court appeal that has beenconsidered and allowed by the impugned order dated 30.11.2021. Beforeadverting to the contents of the impugned order dated 30.11.2021, itshall be worthwhile to take note of the other incidental and ancillary AB

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Aproceedings in the course of the trial of this suit after passing of the saidorder dated 02.05.2019.

5. On 28.06.2019, the plaintiffs-respondents sought extension oftime for filing written statement to the counter-claim, which was grantedand the matter was adjourned to 11.07.2019. Then, on 09.07.2019, theBwritten statement to the counter-claim was filed by the plaintiffs-respondents. However, before further progress of the matter, the appellantfiled Notice of Motion No. 2601 of 2019 on 18.09.2019, seeking leave totransfer right, title and interest in the suit property to third parties. Thisnotice of motion was dismissed on 21.01.2020. Thereafter, on 28.01.2020,issues were framed on the counter-claim; examination-in-chief of PW-C1 and marking of documents was completed; and commissioner wasappointed to record the cross-examination of PW-1. The proceedings ofcommission for recording cross-examination were held from 05.02.2020onwards. In the meantime, the appellant preferred intra-court appealagainst the aforesaid order dated 21.01.2020, being Appeal No. 67 ofD2020. This appeal was considered and disposed of by the Division Benchof the High Court on 20.01.2021 providing for expeditious disposal ofthe suit but not granting the prayer of the appellant, for leave to transferthe property in question during the pendency of the suit. Being aggrieved,the appellant approached this Court by filing a petition for Special Leaveto Appeal[2], being SLP (C) No. 1786 of 2021.E

6. The order passed by this Court on 26.02.2021 in disposal of thesaid SLP (C) No. 1786 of 2021 is of bearing in the present appeal inview of the submissions made before us and, therefore, it would beappropriate to take note of the salient features and the relevant contentsthereof in necessary detail. Therein, this Court took note of theFsubmissions made by the parties, including the anxiety of the appellant todispose of the property in view of his advanced age as also the undertakingof the prospective purchasers to abide by the outcome of the suit. Afterinteracting with the learned counsel for the concerned parties, this Courtpassed the order delineating the conditions agreed upon by the appellantGand the prospective purchasers. This Court also took note of theapprehension expressed on behalf of the plaintiffs-respondents aboutthe legal heirs of the appellant later on claiming rights in the property andcounter submissions in this regard on behalf of the appellant. Thus, havingsettled the matter relating to the prayer of the appellant for leave to H2 ‘SLP’, for short.

transfer the right, title and interest in the property in question, this Courtexpected all the parties to extend the co-operation in early disposal ofthe 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 hadapproached the High Court by way of Notice of motion No. 2601of 2019 in Suit No. 1821/2004, in which the petitioner is defendant,for limited relief of permitting the petitioner to dispose of the suitproperty without prejudice to the rights and contentions of therespondent(s)-plaintiff(s) as he had already reached the advancedage (87 years) and wanted to settle all his issues at the earliestpossible opportunity.

The Single Judge declined to grant that relief to the petitioner, soalso the Division Bench vide impugned judgment and order. TheDivision Bench, however, thought it appropriate to expedite the suitpending since 2004 and issued suitable directions in that regard.

The grievance of the petitioner is that although the suit is directedto be disposed of expeditiously, it is unlikely that the litigation wouldfinally end in the near future. Considering the advanced age ofthe petitioner, therefore, it may not be just and proper to keep thepetitioner waiting for the outcome of the proceedings, especiallywhen the petitioner as well as the third party-proposed purchasersare willing to abide by the outcome of the pending suit and alsogive necessary undertaking within two weeks from today, includingto indemnify the respondent(s)-plaintiff(s), if and when occasionarises.

Considering this submission, we called upon the petitioner togive notice to the proposed purchasers. They are representedthrough Mr. Gopal Shankaranarayanan, learned senior counselinstructed by Mr. Ajit Wagh, learned counsel.

On the oral request made by the learned counsel for thepetitioner, we permit the petitioner to implead the proposed-purchasers as party respondents in these proceedings. Amendmentbe carried out forthwith.

After interacting with the counsel for the concerned parties,we record the agreement reached between them and dispose ofthis petition on that basis.

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It is agreed, in principle, by all concerned that the proposedsale of the suit property by the petitioner be made subject to theoutcome of the pending Suit No.1821/2004 and without prejudiceto the rights and contentions of the respondent(s)-plaintiff(s), inany manner.

The conditions agreed upon by the petitioner and the proposedpurchasers (added respondents) are delineated as follows: - (a) The transfer deed in respect of suit property between thepetitioner and proposed purchasers (added respondents) shall beexecuted within three weeks in the name of “AMAR LIFESPACESLLP”, a family firm and the three partners thereof, namely, DineshJoshi and his two sons (i) Gaurav Joshi and (ii) Hemang Joshi.

(b) The original deed to be so executed shall be submitted by thepetitioner and the proposed purchasers (added respondents) inthe High Court and would continue to abide by the orders of theHigh Court in that regard.

(c) The petitioner and the proposed purchasers (addedrespondents) undertake that they shall not create any third partyright, title or interest in the suit property or indulge in furtheralienation thereof.

(d) The petitioner as well as the proposed purchasers (addedrespondents) shall file an undertaking within two weeks from todayin this Court and also indemnity bond so as to fully secure theinterest of the respondent(s)-plaintiff(s) with regard to the right,title and interest of the suit property including to indemnify inrespect of legal expenses to be incurred and liability of damagesin that regard in any future litigation. (This indemnity is notapplicable to the pending litigation between the petitioner andrespondents and now the added respondents, namely suit No. 1821/2004. In other words, the parties will bear their own legal expensesin respect of the present suit proceedings.).

(e) The proposed purchasers (added respondents) shall beimpleaded in the suit pending before the High Court, who in turnundertake to adopt the written statement and counter claim filedby the petitioner in Suit No.1821/2004 as it is. They will not makeany request for filing further written statements or independentwritten statement as such.

(f) The suit shall proceed from the stage where it is presentlypending and the proposed purchasers (added respondents) willnot move any application for filing independent evidence/document.

(g) Neither the petitioners nor the proposed purchasers (addedrespondents) will approach the occupants of the suit property eitherdirectly or indirectly or through their relatives and enter upon thesuit property.

(h) The petitioner as well as the proposed purchaser (addedrespondents) shall not claim any equity in any respect and abideby the outcome of the Suit No. 1821/2004.

(i) The proposed purchasers (added respondents) shall record inthe undertaking that they shall not transfer their share/change thecomposition of the firm nor dissolve the firm during the pendencyof the suit.

Respondents-plaintiffs have expressed apprehension throughcounsel that the legal heirs of the petitioner may later on claimrights in the suit property, despite the sale in favour of the proposedpurchasers (added respondents). This plea is refuted by the learnedcounsel for the petitioner on the argument that since the petitioneris claiming right, title and interest in the suit property on the basisof the will which stood probated in favour of the petitioner, thequestion of legal heirs claiming any right or obstructing theproposed transaction being entered into between the petitionerand added respondents, does not arise; nor they can do so duringthe life time of the petitioner.

Needless to observe that all parties including the newly addedrespondents shall extend full cooperation for early disposal of thesuit as directed by the Division Bench of the High Court.

The special leave petition and pending applications are disposedof in the above terms. Liberty is given to the parties to apply, ifnecessary.

Registry is directed to accept the Vakalatnama/Appearanceto be filed by the advocate-on-record for the impleaded/newlyadded party within one week from today.”

7. Thereafter, while the suit in question had been proceeding inevidence, the said intra-court appeal bearing No. 10 of 2020, which was A

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Afiled against the order dated 02.05.2019 taking the counter-claim onrecord, was taken up for consideration by the Division Bench of theHigh Court on 30.11.2021. The aforesaid order of this Court dated26.02.2021 was placed before the Division Bench for consideration butthe Division Bench also took note of the grievance of plaintiffs that theywere not given adequate opportunity of contesting the notice of motionBfor taking the counter-claim on record; and considered it proper to remitthe matter for consideration afresh by the Single Judge while settingaside the order dated 02.05.2019. The judgment and order so passed bythe Division Bench of the High Court on 30.11.2021 is in challenge inthis appeal and reads as under: -C

“1. By the above Appeal, the Appellant has impugned the Orderpassed by the Learned Single Judge dated 2[nd]May, 2019 grantingleave to the Respondent to file Counter Claim almost after a periodof seventeen years. Admittedly, the matter had appeared beforethe Court for the first time on 2[nd]May, 2019, when the JuniorDAdvocate representing the Appellants requested for time to fileReply. However, the Learned Judge declined to grant time andproceeded to pass an Order in favour of the Respondent. In fact,the Respondent before us has relied on an order dated 26[th]February,2021 passed by the Supreme Court which is passed subsequentEto the passing of the impugned order by the learned Single Judge.In view thereof, we pass the following order :

(i) The impugned Order dated 2[nd]May, 2019 is set aside.

(ii) The Appellants shall file their response to Notice of MotionNo. 1014 of 2019 within a period of one week from today.

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(iii) The Respondent shall file his Rejoinder to the Reply within aperiod of one week thereafter.

(iv) The Learned Single Judge is requested to hear the partiesand dispose off the Notice of Motion afresh within a period ofGtwo weeks from the date of filing of the Rejoinder, without beinginfluenced by the Order passed by the Learned Single Judge dated2[nd]May, 2019.

(v) All contentions of the parties are kept open.

2. The above Notice of Motion is accordingly disposed off.”

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8. Learned senior counsel Mr. Shyam Divan appearing for theappellant has referred to the background aspects and has contendedthat the impugned judgment and order dated 30.11.2021 remainsunsustainable for several reasons including the fundamental one that itstands in the teeth of the order passed by this Court on 26.02.2021. Thelearned senior counsel would submit that in view of the order passed bythis Court, the question of receiving the counter-claim on record no longerremained open to be re-agitated, particularly when this Court approvedthe proposition that the proposed purchasers, (who were to be impleadedin the suit), shall adopt the written statement as also the counter-claimfiled by the appellant, as existing; and the suit would proceed furtherfrom the stage it stood at the time of the passing of the order by thisCourt. The learned senior counsel would submit that the said order dated26.02.2021 was placed before the Division Bench and despite noticingthe same, the Division Bench has failed to consider that the question oftaking counter-claim on record could not be reopened.

8.1. The learned senior counsel has further contended that in theimpugned order, the Division Bench of the High Court has proceeded ina rather cursory manner inasmuch as no reason whatsoever is assignedfor setting aside the considered order passed by the learned Single Judgeon 02.05.2019.

8.2. The learned senior counsel has also referred to the said orderdated 02.05.2019 and has submitted that the learned Single Judge hasassigned proper reasons for granting leave to the appellant to submit hiscounter-claim and has left all the defences of the plaintiffs, includingthat of limitation open. This order, according to the learned senior counsel,was not suffering from any infirmity so as to warrant interference.

9. Per contra, the learned senior counsel Mr. Shekhar Naphadeappearing for the contesting respondents has made a detailed referenceto the proceedings in the suit and has emphatically argued that in thiscivil suit, which was filed way back in the year 2004 and in which thewritten statement was filed by the appellant on 16.11.2005, the attemptto present a counter-claim nearly 13 years later could not have beencountenanced.

9.1. The learned senior counsel has particularly referred to theorder dated 05.12.2018 and has submitted that surreptitiously filedcounter-claim by the appellant was rightly taken off the record, particularly A

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Awhen written statement had been filed more than 13 years back and noteven an application was moved to seek permission to place the counter-claim on record. The learned senior counsel would further submit thateven if in the appeal against the order dated 05.12.2018, serious objectionswere not raised on the question of filing of the application by the appellantand a concession was stated for not raising objection with reference toBthe stage of suit where issues had already been framed, such a concessioncannot bind a party contrary to law nor could be read as acceptance offiling the counter-claim at a belated stage.

9.2. The learned senior counsel has further submitted that theorder dated 02.05.2019 had been a cryptic and non-speaking order andCtherein, the learned Single Judge failed to consider the law applicable tothe case including Rule 95 of the Bombay High Court (Original Side)Rules. The learned senior counsel has also submitted, with a strongreliance on a 3- Judge Bench decision of this Court in the case of AshokKumar Kalra v. Wing Cdr. Surendra Agnihotri and Ors.: (2020) 2DSCC 394 that belatedly filed counter-claim in the present matter is directlyhit by the law declared by this Court.

9.3. It has also been submitted on behalf of the respondents thatthe subject matter of the said SLP (C) No. 1786 of 2021 before thisCourt was concerning transfer of the suit property by the appellant to aEthird party and no question regarding counter-claim was mentioned orargued therein. Hence, the order dated 26.02.2021 passed in disposal ofthe said SLP does not operate against the objections of the respondentconcerning the counter-claim.

10. In his rejoinder submissions, learned senior counsel for theFappellant would submit that the said decision in Ashok Kumar Kalra(supra) does not operate against the prayer of the appellant for takingthe counter-claim on record and rather, the principles of law enunciatedtherein support the submissions made on behalf of the appellant.

11. Having given thoughtful consideration to the rival submissionsGand having examined the material placed on record, we are clearly ofthe view that neither the impugned order of the Division Bench of theHigh Court could be approved nor the submissions made on behalf ofthe respondents against the legality and validity of the order dated02.05.2019 could be accepted.

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12. As regards the provisions of law applicable to the case, wemay usefully take note of the provisions contained in Order VIII Rule 6-A of the Code of Civil Procedure, 1908[3] and Rule 95 of the BombayHigh Court (Original Side) Rules as follows: - Order VIII Rule 6-A CPC:

“6-A.Counterclaim by defendant.—(1) A defendant in a suitmay, in addition to his right of pleading a set-off under Rule 6, setup, by way of counterclaim against the claim of the plaintiff, anyright or claim in respect of a cause of action accruing to thedefendant against the plaintiff either before or after the filing ofthe suit but before the defendant has delivered his defence orbefore the time limited for delivering his defence has expired,whether such counterclaim is in the nature of a claim for damagesor not:

Provided that such counterclaim shall not exceed the pecuniarylimits of the jurisdiction of the court.

(2) Such counterclaim shall have the same effect as a cross-suitso as to enable the court to pronounce a final judgment in thesame suit, both on the original claim and on the counterclaim.

(3) The plaintiff shall be at liberty to file a written statement inanswer to the counterclaim of the defendant within such periodas may be fixed by the court.

(4) The counterclaim shall be treated as a plaint and governed bythe rules applicable to plaints.”

Rule 95 of the Bombay High Court (Original Side) Rules:

“95. A defendant in a suit, in addition to his right of pleading a set-off under Order VIII, Rule 6 of the Code of Civil Procedure, mayset-up by way of counter-claim against the claims of the plaintiffany right or claim in respect of a cause of action accruing to thedefendant either before or after the filing of the suit but beforethe defendant has delivered his defence and before the time limitedfor delivering his defence has expired, whether such counter-claimsounds in damages or not, and such counter-claim shall have thesame effect as a cross-suit, so as to enable the Court to pronounce A

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Aa final judgment in the same suit, both on the original claim and onthe counter-claim; and the plaintiff (if so advised) shall be at libertyto file a reply to the counter-claim of the defendant within eightweeks after service upon him or his Advocate on record of acopy of the defendant’s counter-claim; and the Court or the Judgein Chambers may, on the application of the plaintiff before trial ifBin the opinion of the Court or the Judge such counter-claim cannotbe disposed of in the pending suit or ought not to be allowed,refuse permission to the defendant to avail himself thereof andrequire him to file a separate suit in respect thereof.”

13. In Ashok Kumar Kalra (supra),the 3-Judge Bench of thisCCourt essentially considered the question on reference as to whether itis mandatory for a counter-claim of the defendant to be filed along withthe written statement. While answering this question, this Courtunderscored the basic principles that procedural law should not beconstrued in such a way that it would leave court helpless; and that aDwide discretion had been given to the Civil Court regarding the proceduralelements of a suit. Having said so, this Court observed that a counter-claim is designed to avoid multiplicity of proceedings; that time limit forfiling a counter-claim is not explicitly provided for but there is limitationas to the accrual of the cause of action. However, the majority opinionhas been that the defendant cannot be permitted to file counter-claimEafter the issues are framed and the suit has proceeded substantially. Itwas observed and held in the lead judgment, inter alia, as under: - “18. As discussed by us in the preceding paragraphs, the wholepurpose of the procedural law is to ensure that the legal processis made more effective in the process of delivering substantialFjustice. Particularly, the purpose of introducing Rule 6-A in Order8 CPC is to avoid multiplicity of proceedings by driving the partiesto file separate suit and see that the dispute between the parties isdecided finally. If the provision is interpreted in such a way, toallow delayed filing of the counterclaim, the provision itselfGbecomes redundant and the purpose for which the amendment ismade will be defeated and ultimately it leads to flagrant miscarriageof justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that thecounterclaim has to be filed along with the written statement andbeyond that, the court has no power. The courts, taking into H

consideration the reasons stated in support of the counterclaim,should adopt a balanced approach keeping in mind the object behindthe amendment and to subserve the ends of justice. There cannotbe any hard and fast rule to say that in a particular time thecounterclaim has to be filed, by curtailing the discretion conferredon the courts. The trial court has to exercise the discretionjudiciously and come to a definite conclusion that by allowing thecounterclaim, no prejudice is caused to the opposite party, processis not unduly delayed and the same is in the best interest of justiceand as per the objects sought to be achieved through theamendment. But however, we are of the considered opinion thatthe defendant cannot be permitted to file counterclaim after theissues are framed and after the suit has proceeded substantially.It would defeat the cause of justice and be detrimental to theprinciple of speedy justice as enshrined in the objects and reasonsfor the particular amendment to CPC.

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21. We sum up our findings, that Order 8 Rule 6-A CPC does notput an embargo on filing the counterclaim after filing the writtenstatement, rather the restriction is only with respect to the accrualof the cause of action. Having said so, this does not give absoluteright to the defendant to file the counterclaim with substantivedelay, even if the limitation period prescribed has not elapsed.The court has to take into consideration the outer limit for filingthe counterclaim, which is pegged till the issues are framed. Thecourt in such cases have the discretion to entertain filing of thecounterclaim, after taking into consideration and evaluatinginclusive factors provided below which are only illustrative, thoughnot 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 thecounterclaim.

(vi) Cost of fresh litigation.

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A(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.”

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13.1. In the partly dissenting and partly concurring judgment, oneof the Hon’ble Judges of the Bench stated his opinion that though thenormal rule is that subsequent to filing of written statement, counter-claim cannot be filed after issues have been framed, under exceptionalcircumstances, counter-claim may be permitted to be filed even afterCissues have been framed, but before commencement of recording ofplaintiff’s evidence. The Hon’ble Judge observed, inter alia, as follows: - “31. From the foregoing discussion, it is clear that a counterclaimcan be filed if two conditions are met: first, its cause of actioncomplies with Order 8 rule 6-A(1); and second, it is filed withinthe period specified under the Limitation Act. Clearly, by itself,Rule 6-A does not specifically require that a counterclaim has tobe filed along with the written statement. In the absence of aparticular mandate under this Rule, it is necessary to look to otherprovisions of CPC to determine whether a counterclaim can befiled after a written statement.

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38. A conjoint and harmonious reading of Rules 6-A, 9 and 10 ofOrder 8 as well as Order 6 Rule 17 CPC thus reveals that thecourt is vested with the discretion to allow the filing of acounterclaim even after the filing of the written statement, aslong as the same is within the limitation prescribed under theLimitation Act, 1963. In this regard, I agree with the propositionslaid down in the decisions discussed below.

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56. The above discussion lends support to the conclusion that eventhough Rule 6-A permits the filing of a counterclaim after thewritten statement, the court has the discretion to refuse such filingif it is done at a highly belated stage. However, in my consideredopinion, to ensure speedy disposal of suits, propriety requires thatsuch discretion should only be exercised till the framing of issues G

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for trial. Allowing counterclaims beyond this stage would not onlyprolong the trial, but also prejudice the rights that may get vestedwith the plaintiff over the course of time.

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60. …….I conclude that it is not mandatory for a counterclaim tobe filed along with the written statement. The court, in its discretion,may allow a counterclaim to be filed after the filing of the writtenstatement, in view of the considerations mentioned in the precedingparagraph. However, propriety requires that such discretion shouldordinarily be exercised to allow the filing of a counterclaim till theframing of issues for trial. To this extent, I concur with theconclusion reached by my learned Brothers. However, for thereasons stated above, I am of the view that in exceptionalcircumstances, a counterclaim maybe permitted to be filed aftera written statement till the stage of commencement of recordingof the evidence on behalf of the plaintiff.”

14. In a conspectus of the aforesaid and while proceeding on thefundamental principles that the rules of procedure are intended tosubserve the cause of justice rather than to punish the parties in conductof their case, we are clearly of the view that the counter-claim in questioncould not have been removed out of consideration merely because itwas presented after a long time since after filing of the written statement.Indisputably, the counter-claim was filed on 07.09.2018 and until thatdate, issues had not been framed in the suit. In fact, the issues wereframed only on 05.12.2018, the very date on which the learned SingleJudge in the first round of these proceedings took the counter-claim offthe record for no permission/leave having been sought for its presentation.In appeal against the order dated 05.12.2018, the Division Benchpermitted filing of the requisite application seeking permission to file thecounter-claim, while taking note of the submissions of the plaintiffs-respondents that they will not raise an objection to such application onthe ground that the issues had already been framed and documentaryevidence had been presented; and the Division Bench expected thelearned Single Judge to deal with such an application on its own merits.Pursuant to the liberty so granted by the Division Bench, the appellantmoved the application seeking permission to place the counter-claim onrecord and in support thereof, filed a detailed affidavit stating specificreasons for which the counter-claim was sought to be filed, including A

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Athat of avoiding the multiplicity of proceedings. The appellant also pointedout the fact that he was earlier engaged in the dispute concerningsuccession to the property, which came to be settled in his favour only inthe year 2017. The learned Single Judge, while passing the order dated02.05.2019, did not elaborate much on the other aspects but pointed outthe reason for accepting the prayer of the appellant that it would avoidBmultiplicity of proceedings; and in all fairness to the plaintiffs-respondents,kept all their defences, including as to limitation, specifically open. Thesaid order dated 02.05.2019, even if passed by the learned Single Judgeon the very first day of consideration of the application moved by theappellant, had been a just and proper order which was conducive to theCproper progression of the proceedings while avoiding multiplicity oflitigation. There was no justified reason for the Division Bench to haveinterfered with the order so passed by the learned Single Judge.

14.1. In the totality of the facts and circumstances of the presentcase, we are clearly of the view that neither the requirements of OrderDVIII Rule 6-A CPC or Rule 95 of the Rules nor the principles enunciatedand explained in Ashok Kumar Kalra (supra) operate as a bar over theprayer of the appellant for taking the belatedly filed counter-claim onrecord, which was indeed filed before framing of issues.

15. Apart from the above, there are a few other reasons, forEwhich we find the impugned order of the Division Bench to be whollyunjustified.

15.1. As noticed, in the order dated 26.02.2021, this Court hadprovided for expeditious proceedings while taking note of the submissionsof the parties and while ensuring that even if the appellant shall transferFhis right, title and interest to third parties, such transferees will not seekfiling of further pleadings and shall remain bound by the proceedings ofthe suit in question. In that context, it was provided that the proposedpurchasers shall be impleaded in the suit; and their undertaking was alsorecorded that they will adopt the written statement and counter-claimfiled by the appellant and will not make any request for filing furtherGwritten statements or independent written statement as such. This Courtfurther provided that the suit shall proceed from the stage where it waspending and the proposed purchasers will not move any application forfiling independent evidence/document.

15.2. True it is, as contended on behalf of the respondents, thatHthe 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 notregarding the permissibility to file counter-claim but, for this reason alone,the substance and impact of the order passed by this Court is not whittleddown. Even when the subject matter of the said SLP related to theproposition of the appellant to transfer the suit property to a third partyand even when the arrangement provided by the order dated 26.02.2021was essentially concerning the defendant-appellant and the prospectivetransferees, fact of the matter remains that the said order was passed inthe presence of the plaintiffs-respondents, whose apprehension of adifferent nature, about the likely claims in future by the legal heirs of theappellant, was also taken note of with its response on behalf of theappellant. This Court, thereafter, re-emphasised the requirements ofexpeditious proceedings.

15.3. When construed on its pith and substance, the impact of thesaid order dated 26.02.2021 on the procedural aspect concerningpleadings has clearly been that existence of the counter-claim on recordwas taken by this Court as a fait accompli; and this order left a little,rather nil, scope for upsetting the existing pleadings. The expectationshad been that the proceedings in the suit coupled with the counter-claimshall be taken forward from the given stage onwards.

15.4. On a comprehension of the impugned order dated 30.11.2021,we are impelled to observe that even when this Court’s order dated26.02.2021 was placed before it, the Division Bench of the High Courtdid not consider its purport and meaning as also its impact on the suitproceedings and on the question of filing of counter-claim. There wasno 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.

16. Apart from the above, on the date on which the Division Benchchose to upset the proceedings of the suit in question by setting aside theorder dated 02.05.2019, much progression had taken place, including thefiling of written statement by the plaintiffs to such counter-claim; framingof issues on the counter-claim; and recording of the plaintiffs’ evidence.Moreover, expeditious proceedings were required to be ensured by allthe concerned, in view of the earlier orders passed by the Division Benchof the High Court as also by this Court.

16.1. With respect, it appears that the Division Bench of the HighCourt, while passing the impugned order dated 30.11.2021, proceeded ina rather cursory manner in directing reconsideration of the prayer of the AB

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Aappellant for taking the counter-claim on record without considering therelevant aspects of the proceedings in the suit and the law applicablethereto as also without considering the likely impact of its order on theproceedings, which had already taken place and which were underprogress. Viewed from any angle, the impugned order deserves to beset aside.

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17. In the passing, we may observe that one small segment ofarguments on behalf the appellant had also been concerningmaintainability of intra-court appeal against the order dated 02.05.2019for no valuable rights having been decided, which had been duly counteredon behalf of the respondents. However, this aspect need not be dealtCwith in this appeal, looking to the facts and circumstances of the presentcase, where the impugned order of the Division Bench is not beingapproved on its merits. Other questions are left open, to be examined inan appropriate case.

18. Before parting, we may also observe that during the course ofDsubmissions, it has been pointed out before us that the subject suit isproceeding in defendant’s evidence, particularly after this Court had stayedthe operation and effect of the impugned order dated 30.11.2021 by theorder dated 03.01.2022. Needless to reiterate what has already beenobserved in the previous orders that the parties shall be expected toEextend full co-operation for early disposal of the suit.

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19. In the result, this appeal succeeds and is allowed; the impugnedorder dated 30.11.2021 as passed by the Division Bench of the HighCourt is set aside; and order dated 02.05.2019 as passed by the learnedSingle Judge is restored. No costs.

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Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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