Created by Fuzzy Cloud

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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

Lawyer court records for this case

Associated through the court’s case reference.

For a signed copy suitable for filing, refer to the court's website.