The petitioners, plaintiffs in O.S.No.4819/20230 on

the file of the LXIV Additional City Civil and Sessions Judge

(CCH-65) at Bengaluru City (for short, ’Trial Court’) are

before this Court aggrieved by order dated 15.07.2023

allowing I.A.No.13 permitting second defendant to file

counterclaim.

Heard learned counsel Sri.Ashok B. Patil for

petitioners/plaintiffs and learned counsel Smt.Geetha

Menon for Caveator/respondent No.1 herein, defendant

No.2 before the Trial Court. Perused the writ petition

papers.

Learned counsel for the petitioners/plaintiffs

would submit that suit of the petitioners/plaintiffs is for

partition; to declare registered gift deed dated 22.08.2013

in respect of suit schedule property ‘A-3’ is null and void

and not binding on the share of the plaintiffs and for

perpetual injunction. It is submitted that second defendant

filed her written statement and thereafter filed I.A.No.13

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under Order VIII Rule 6A read with Section 151 of CPC

seeking permission to file counterclaim along with

counterclaim.

The petitioners/plaintiffs are wife and children

of late Girish Ramakrishnan, whereas second defendant is

mother of late Girish Ramakrishnan and wife of first

defendant

Sri.P.Ramakrishnan,

father

of

late

Girish

Ramakrishnan.

Learned counsel for the petitioners/plaintiffs

would submit that the Trial Court committed an error in

allowing defendant No.2 to file counterclaim and taking the

same on record. Learned counsel would submit that

counterclaim is not based on the same cause of action on

which the suit is filed and the counterclaim property is not

the subject matter of the suit. Further, mother of late

Girish Ramakrishnan had no right over the self acquired

property of her son late Girish Ramakrishnan. Therefore, it

is submitted that counterclaim is misconceived and Trial

Court could not have allowed to file counterclaim. Learned

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counsel places reliance on the decisions of the Hon'ble

Apex Court in the case of ASHOK KUMAR KALRA VS.

WING CDR. SURENDRA AGNIHOTRI AND OTHERS¹

and submits that if there is similarity of cause of action

between main suit and the counterclaim, then only

counterclaim can be entertained. As there is no similarity

of cause of action in the instant case, entertaining

counterclaim by the Trial Court is erroneous. Thus, he

prays for allowing the writ petition.

Learned counsel for the Caveator/respondent

No.1 Smt.Geetha Menon would submit that second

defendant is mother of late Girish Ramakrishnan. The

cause of action for main suit as well as the counterclaim

arose on the death of late Girish Ramakrishnan, son of

second defendant and husband of first plaintiff. In that

regard, learned counsel for Caveator/respondent No.1

invites attention of this Court to paragraph 54 of the plaint

and submits that plaintiffs have stated that cause of action

1 (2020) 2 SCC 394

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for the suit arose on the death of Sri.Girish Ramakrishnan

in the year 2014, whereas the second defendant in her

counterclaim also stated that

cause of action for

counterclaim arose on 02.09.2014 when late Girish

Ramakrishnan died intestate and on subsequent dates

when the plaintiffs have excluded second defendant from

her lawful share in the estate of late Girish Ramakrishnan.

Learned

counsel

would

submit

that

second

defendant/respondent No.2 herein is also entitled for

share in the joint family properties and contention of the

petitioners/plaintiffs that it is not a joint family properties,

is to be gone into in the trial and at this stage, no finding

could be given as to whether the suit schedule properties

are joint family properties or self acquired properties of

late Girish Ramakrishnan. Thus, she justifies the order

passed by Trial Court.

Having heard the learned counsel appearing for

the parties and on perusal of the writ petition papers, I am

of the view that no ground is made out to interfere with

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the impugned order. Further, impugned order is neither

perverse nor it suffers from material