Bombay High Court
DILIP TUKARAM KAPSE AND ORSversusSMT GAJARABAI CHANDER KAPSE THROUGH POA BALU KAPSE AND ORS
- Decided
- Disposal
- Allowed
Holding
The trial court erred; the legal heirs of Defendant No.1 may be brought on record in the counter‑claim.
Summary
The petitioners challenged a trial court order that rejected applications to record the legal heirs of the deceased Defendant No.1 in a counter‑claim. The deceased’s son, Defendant No.2, had already been brought on record in the plaintiff’s suit, but the defendants sought to similarly record the heirs in their counter‑claim. The High Court held that once the heir is recorded in the main suit, there is no impediment to recording the same heir in the counter‑claim, and the trial court’s rejection was erroneous. Consequently, the order rejecting the applications was set aside and the heirs were allowed to be recorded in the counter‑claim, with an amendment to be filed within six weeks. No costs were awarded.
Issues considered
- Whether the trial court erred in rejecting the applications to bring on record the legal heirs of Defendant No.1 in the counter‑claim.
- Whether the recording of a legal heir in the main suit precludes their recording in a counter‑claim.
Subjects
- legal heir
- counter‑claim
- amendment
- Civil Procedure Code
- joinder of parties
- trial court order
Judgment
2026:BHC-AS:38684
k 1/2 24 wp 11841.15 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11841 OF 2015
Dilip Tukaram Kapse & Ors. ....Petitioners
V/S
Gajarabai Chander Kapse
through POA Balu Kapse & Ors. ....Respondents
_________
Mr. Sumedh Modak with Mr. Vivek Rane i/b Mr. Ashwinikumar R.
Kapadnis for the Petitioners.
Mr. Sudhir V. Sadavrate for Respondent Nos.2 to 7.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 21 SEPTEMBER 2026.
P.C.:
1. The Petition challenges order dated 9 March 2015 passed by 5th
Joint Civil Judge Senior Division, Baramati, rejecting the Applications at
Exhibits-103 and 105 filed by the Defendants to bring on record legal
heirs of Defendant No.1-Tukaram Shankar Kapse, in the counter-claim.
2. I have heard Mr. Modak, the learned counsel appearing for the
Petitioners and Mr. Sadavarte, the learned counsel appearing for
contesting Respondents.
3. It appears that Defendant No.1-Tukaram Shankar Kapse had filed
counter-claim against the Plaintiffs. Defendant No.2 is the son of
Defendant No.1. After death of Defendant No.1, Defendant No.2 is
katkam Page No. 1 of 2
k 2/2 24 wp 11841.15 as.doc
brought on record in the Suit at the instance of the Plaintiffs. However,
there was inadvertence on the part of the Defendants in carrying out
similar change in the counter-claim. By Applications at Exhibit-103 and
105 legal heir of Defendant No.1 was sought to be brought on record in
the counter-claim.
4. Considering the above situation, in my view, once legal heir of
Defendant No.1 is brought on record in the Plaint, there ought to have
been no difficulty in permitting legal heir of Defendant No.1 being
brought on record in the counter-claim as well. It is another matter that
his legal heir is Defendant No.2 and is already a contesting party in the
Suit. The Trial Court has erred in rejecting the Applications at Exhibit-
103 and 105.
5. Order dated 9 March 2015 is accordingly set aside. Legal heirs of
Defendant No.1 are permitted to be brought on record in the counter-
claim. Necessary amendment to be effected within a period of six weeks.
Writ Petition is allowed in above terms. There shall be no order as to
costs.
(SANDEEP V. MARNE, J.)
katkam
Signed by: Sudarshan R. Katkam Page No. 2 of 2
Designation: PS To Honourable Judge
Date: 22/09/2026 16:08:33
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