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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. JAMADAR
Alankar Padaji Mhatre – Appellant
Versus
Namdeo Narayan Naik, Since deceased thr. Legal heirs.-A. Ramabai Namdeo Naik – Respondent
JUDGMENT :
N. J. JAMADAR, J.
1. Rule. Rule made returnable forthwith, and, with the consent of learned Counsel for the parties, heard finally.
2. These three petitions assail the legality, propriety and correctness of a common order on applications (Exh. 76 and 89) in Regular Civil Suit No. 16/2009, dated 18th December, 2023 passed by the learned Civil Judge, Panvel, whereby the application (Exh. 76) preferred by the petitioners in Writ Petition No. 1277/2024 and 1278/2024 – the plaintiffs, to delete the petitioner in Writ Petition No. 1297/2024 – Defendant No. 5 from the array of the defendants, and Plot No. 73, Sector No. 03, Ulwe Node (“the suit plot”) from the suit properties, came to be rejected and the application (Exh. 89) preferred by the Respondent Nos. 1 to 4 – Defendant Nos 1 to 4 seeking amendment in the written statement so as to also file a counter- claim against the plaintiffs and Defendant No. 5, came to be allowed.
3. Though there have been multiple proceedings in respect of the suit plot, yet, the background facts necessary for the determination of these petitions can be summarized as under:
3.1 Late Narayan Hari Naik, was the father of Defendant Nos. 1 to 4, and Smt.
Plaintiffs have an unqualified right to abandon parts of their claims without court permission, overriding objections from co-defendants regarding counter-claims.
A defendant cannot file a counterclaim against a co-defendant under the CPC, as the provisions only allow counterclaims against the plaintiff.
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
A counterclaim directed solely against a co-defendant is typically impermissible; however, if it intertwines with a plaintiff's claim, it may hold validity under commercial agreements.
Counterclaims may be allowed after closing evidence if justified by circumstances; procedural rules must serve justice.
(1) Counter-claim – Relief of specific performance cannot be set up by way of a counter-claim.(2) Counter-claim is treated as a cross-suit and is governed by rules applicable to plaints, including ob....
Counter claims in partition suits must be directed against the plaintiff; co-defendants cannot initiate claims solely against each other without notice, as all parties have interchangeable roles.
A counterclaim in a partition suit must be against the plaintiff; failing to notify co-defendants constitutes a violation of natural justice, rendering any ex parte decree unsustainable.
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