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IN THE HIGH COURT OF BOMBAY
Milind N. Jadhav, J.
M. L. Sandbhor - Appellant
Versus
Sulochana Walimbe - Respondent
Writ Petition No. 6600 of 2015
Decided On : 16-02-2023
Writ Petition - Cooperative Society Dispute - Order 7 Rule 11 CPC - The court discussed the provisions of Order 7 Rule 11 of the Civil Procedure Code (CPC), which allows for the rejection of a plaint if it does not disclose a cause of action or is barred by law. The court interpreted that the counter claim's validity was contingent upon the timing of its filing in relation to the cause of action and the original dispute. The court emphasized that the issue of limitation is a mixed question of law and fact, and the Appellate Court's decision to reject the counter claim based solely on limitation was not appropriate. The court upheld the Appellate Court's order, indicating that allowing the counter claim would disrupt the established timeline of the dispute.
Fact of the Case:
The Petitioner, a member of a Cooperative Housing Society, challenged the legality of an order from the Maharashtra State Cooperative Appellate Court that quashed a counter claim he filed in response to an amended dispute application. The original dispute was filed by a former member seeking allotment of a plot, and after amendments were made to the application, the Petitioner filed a counter claim which was later rejected on grounds of being time-barred.
Finding of the Court:
The court found that the counter claim had a direct nexus with the amended dispute application and that the issue of limitation was a mixed question of law and fact. The court concluded that the Appellate Court's rejection of the counter claim based solely on limitation was inappropriate, as it did not consider the merits of the case adequately.
Issues: Whether the counter claim filed by the Petitioner was time-barred and whether it had a valid cause of action in relation to the amended dispute application.
Ratio Decidendi: The court held that the counter claim could not be dismissed solely on the basis of limitation without a thorough examination of the facts and circumstances surrounding its filing. The court emphasized that the right to file a counter claim is linked to the cause of action and that the timing of the claim must be evaluated in the context of the entire dispute.
Final Decision: The court upheld the Appellate Court's order rejecting the counter claim, stating that allowing it would disrupt the established timeline of the dispute. The Writ Petition was disposed of, and the parties were directed to pursue their claims in the appropriate civil court if desired.
JUDGMENT/ORDER
1. The present Writ Petition was heard on 1/12/2022. On 10/12/2022, the order allowing the Petition was uploaded on the website of the High Court without pronouncing the judgment.
2. Hence, on 23/12/2022, this Court was moved by an urgent Application filed by Mr. Kanetkar appearing on behalf of Respondent Nos.1a and 1b by bringing it to the notice of the Court that the judgment was not pronounced and on 10/12/2022 the final judgment was uploaded on the High Court website. He also made a further grievance that pursuant to the submissions made by both the learned Advocates, the counter claim filed by the Petitioners before the learned Trial Court in the year 2014 could never have been allowed in any event as allowing the same would virtually extinguish the period of limitation which is available to the Respondents and permit the Petitioners to maintain the counter claim and relate it from the date of inception of the suit / impleadment. He would submit that admittedly the suit proceedings are dispute proceedings bearing Dispute Application No.261 of 1997 filed at a much earlier point of time between the parties.
3. After considering the submissions of Mr. Kanetkar and perusing the final judgment which was uploaded inadvertently on the High Court website without being pronounced and also after hearing Mr. Tapkir on 23/12/2022, I passed the following order:-
<WXY>"1. Heard Ms. Khambete, learned Advocate for Petitioners and Mr. Kanetkar, learned Advocate for Respondent Nos. 1a and 1b.
2. The present Writ Petition was heard on 29/11/2022 and reserved for orders. Record indicates that on 10/12/2022, the order has been uploaded on the High Court website. However, the date of the order is 1/12/2022. Admittedly, this Court has not pronounced the judgment.
3. Mr. Kanetkar in his usual fairness has brought this fact to the notice of the Court and has also placed a copy of the uploaded order before the Court. He submitted that the issue of permitting the Respondents to allow his counter-claim dates back to the year 1998/2002 which was heard by the learned Court and it is covered by judgments of the Supreme Court. He submitted that he would like to place on record the judgments.
4. Let the copy of the judgments be given to Mr. Tapkir, learned Advocate for Petitioners.
5. Place the matter for fresh hearing on 10 th January, 2023 at 04:30 p.m. It is clarified that till then, the order dtd. 1/12/2022 which was uploaded is held in abeyance."</WXY>
4. Today, I have heard Mr. Tapkir and Mr. Kanetkar, learned Advocates appearing for the parties at length and perused the entire record of the case. Hence, I proceed to deliver the final judgment in the present Writ Petition. However, before I do that I need to clarify that the judgment / order dtd. 1/12/2022 uploaded on the High Court website shall be considered as withdrawn and deleted.
5. After according fresh hearing to both the parties, hearing them at length and considering their pleadings, I proceed to determine the present Writ Petition as under:-
6. Rule. By consent taken up for final hearing.
7. By the present Petition, Petitioners have prayed for the following relief:-
<WXY>"B) This Hon'ble Court by virtue of appropriate writ, order or direction be pleased to examine the legality, validity and propriety of the impugned judgment and order Dt. 13/3/2015 passed by the Maharashtra State Cooperative Appellate Court, Mumbai Bench at Pune in Revision Application No. 28 of 2014, which is arising out of judgment and order Dt. 19/3/2014 passed the below Exhibit 152 by the Ld. Cooperative judge, Cooperative Court No.2, Pune in Dispute bearing No. 261 of 1997 and after examining the same further be pleased to quash and set aside;"</WXY>
8. Petitioner is a member of Respondent No.2 - Cooperative Housing society. Original Respondent No.1 Smt. Sulochana Walimbe (since deceased) filed Dispute Application No.261 of 1997 against Respondent No.2 - Society. This Dispute Application was filed for seeking
The court established that the rejection of a counter claim based solely on the issue of limitation must consider the mixed questions of law and fact, and that the timing of claims in relation to the....
The main legal point established in the judgment is the application of Order 7 Rule 11 of the Civil Procedure Code in determining the admissibility of a counter claim, and the Court's authority to di....
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
Counterclaims may be allowed after closing evidence if justified by circumstances; procedural rules must serve justice.
A counterclaim must be filed within the limitation period, and failure to address this can lead to a material irregularity in judicial proceedings.
Counter-claim by defendant – Though normal rule is that subsequent to filing of written statement, counter-claim cannot be filed after issues have been framed, under exceptional circumstances, counte....
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