SUDHEER PRABHAKAR DESAI AND ANRversusANAND PRABHAKAR DESAI AND 2 ORS

2026:BHC-GOA:1394                            WP 395.2026




                    Sonam


                            IN THE HIGH COURT OF BOMBAY AT GOA

                                          WRIT PETITION NO. 395 OF 2026

                     1. Mr. Sudheer Prabhakar Desai,
                        Aged about 85 years,
                        Son of Late Mr. Prabhakar Shankar Desai,
                        Married, Retired, Service,
                        Presently residing at 501,
                        Models Marine Vistas,
                        Caranzalem, Panaji, Goa 403004.

                     2. Mrs. Sanyucta Sudheer Desai,
                        Aged 81 years, Major in age,
                        W/o Sudheer Desai,
                        Married, Housewife,
                        Presently residing at 501,
                        Models Marine Vistas,
                        Caranzalem, Panaji, Goa 403004.            … Petitioners

                                           Versus

                     1. Mr. Anand Prabhakar Desai,
                        About 76 years,
                        S/o Mr. Prabhakar Shankar Desai,
                        Service,
                        Permanent Address at 6540,
                        Deer Hallow Drive,
                        San Jose, California, 95120, USA
                        And presently Residing at 238,
                        Petheche-wada, Corgao,
                        Pernem, Goa, 403512.
                        Mobile 9082633801
                        E-mail: [email protected]


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2. Mrs. Mrudula Pramod Pandit,
   Aged 78 years,
   W/o Pramod Pandit,
   Married, Service,
   Presently residing at 12,
   Hillview Cooperative Society,
   Deonar Baug, Deonar Village Road,
   Deonar, Mumbai, Pin Code-400088.

3. Mr. Pramod Pandit,
   Aged 78 years,
   H/o Mrudula Pramod Pandit,
   Married, Service,
   Presently residing at 12,
   Hillview Cooperative Society,
   Deonar Baug, Deonar Village Road,
   Deonar, Mumbai, Pin Code 400088.                …Respondents


Mr. Joel Pinto, Advocate for the Petitioners.
Mr. Neelesh Takkekar and Ms. Vidhi Volvoikar, Advocates
for Respondent No. 1.

Mr. Abhay Nachinolkar, Advocate for Respondent No. 2.

                 CORAM : VALMIKI MENEZES, J.
                 DATED : 17TH JULY, 2026


ORAL JUDGMENT:

1.   Heard learned Advocates for the parties.

2.   Rule. Rule is made returnable forthwith; at the request
of and with the consent of learned Advocates for the parties,
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the matter is finally heard and disposed of. Learned Advocate
Ms. Volvoilkar waives service on behalf of Respondent No.
1, and learned Advocate Mr. Nachinolkar waives service on
behalf of Respondent No. 2.

3.         By way of this Writ Petition under Article 227 of the
Constitution of India, the Petitioner has impugned the order
dated 12.09.2025 passed on Exhibit D-15, which is the
application of the Petitioner filed under Order 23 Rule 3 of
CPC. The Court has rejected the prayer for grant of leave to
the Petitioner to institute/continue a counterclaim filed in
another suit, but has granted the Petitioner leave to withdraw
the counterclaim filed by him in Regular Civil Suit No.
26/2023.

4.         The impugned order came to be passed in the following
background facts:

     (a)    Regular Civil Suit No. 26/2023 came to be filed by
            one of the three siblings named Anand, in the Court
            of Civil Judge Junior Division at Pernem, that suit
            was filed for a permanent injunction simplicitor on
            the premise that Anand was a co-owner of the suit
            properties along with his two other siblings, Sudhir
            and Mrudula. All these spouses of the three siblings

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      are also included in the suit. In Regular Civil Suit
      No. 26/2023, the Petitioners were Defendant Nos. 1
      and 2, who filed their written statement along with
      the   counterclaim;     in       the   counterclaim,   the
      Petitioners sought a declaration that they were the
      sole owners of the suit properties by way of adverse
      possession/prescription since their possession was
      continuous and hostile to the other co-owners for
      more than 30 years. In short, the Petitioner claims
      an ouster of all other co-owners.

(b)   Whilst Regular Civil Suit No. 26/2023 was pending
      in the Pernem Court, Anand filed a second suit,
      which is Special Civil Suit No. 153/2023 in the
      Court of Civil Judge Senior Division at Mapusa,
      wherein he sought, as a primary relief, partition of
      the suit properties claiming 1/3rd share therein. It is
      Anand’s case in the second suit that each of the
      siblings has 1/3rd share and partition of the suit
      properties is required to be effected on that basis. In
      the second suit, the Petitioner Sudhir filed written
      statement along with the counterclaim in which, he
      once again sought a relief of declaration of the sole
      title to all the suit properties by way of ouster with
      other co-owners; in addition, he also sought other

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      reliefs in the injunction and also sought a relief of
      enforcement of what he claims of in the MOU of the
      year 2008 and consequent thereto sought partition of
      the suit properties.

(c)   The Plaintiff in the first suit (Anand) withdrew
      Regular Civil Suit No. 26/2023 on 31.08.2024 and
      is now only pursuing Special Civil Suit No.
      153/2023 for partition; however, Regular Civil Suit
      No. 26/2023 was being tried only to decide the
      counterclaim of the Petitioner Sudhir.

(d)   Whilst the counterclaim was pending adjudication
      in Regular Civil Suit No. 26/2023, the Petitioner
      filed an application styled as application for
      withdrawal of the counterclaim; what the Petitioner
      sought was for an order for allowing him to
      withdraw the counterclaim with leave to pursue the
      same relief in the counterclaim filed by him in
      Special Civil Suit No. 153/2023. It is this
      application that the Trial Court has partly allowed by
      rejecting the relief of leave to pursue the
      counterclaim in Special Civil Suit No. 153/2023;
      however, it has granted the Petitioner the right to
      withdraw his counterclaim.


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5.        Considering the above mentioned facts and provisions
of Order 23 Rule 3 CPC, under which the application at
Exhibit D-28 had been filed, the Trial Court has fallen into
error by allowing the application in part. The provisions of
Order 23 Rule 3 empowers the Court to grant a party leave
to file or pursue a remedy by way of filing a separate
proceeding or pursuing a pending proceeding after
withdrawing the proceeding before the Court. Order 23 Rule
3 does not permit the Court the discretion to allow the
application in part, and it was either to grant the application
in toto or dismiss the entire application. I am fortified in
taking this view by the judgment rendered by this Court in
Chandrakant Pandurang Shingade and ors. V/s Shri.
Walchand Gulabchand Bora and ors.1, which has held as
under:

                 “7. Contention of the Applicant that though
                 Plaintiff was permitted to withdraw the suit but in
                 absence of express liberty to institute fresh suit,
                 second suit was not maintainable, cannot be
                 accepted. In as much as prayer for withdrawal and
                 liberty to file fresh suit cannot be split up in two
                 parts viz, withdrawal and liberty to file fresh suit.
                 It has to be allowed as whole or rejected as whole.
                 It is well settled that if an application is made for
                 withdrawal of the suit with liberty to file suit, it is
                 not open for the Court to grant only permission for
                 withdrawal, without liberty to institute the
                 proceedings, though it is open for the Court to
                 reject such application, as held in the case of

1
    2019 Supreme (Bom) 1168
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           Mario Shaw Vs. Martin Fernandez and Anr.
           reported in AIR 1996 Bombay 116.”


6.   Obviously, the consequential order, which is also
dated 12.09.2023, passed on the counterclaim of the
Petitioner below Exhibit B-15, dismissing the counterclaim,
shall stand quashed, and the counterclaim stands restored to
the file of Regular Civil Suit No. 26/2023.

7.   On the count alone, the impugned order must be
quashed and set aside and is hereby quashed and set aside.
Since the Trial Court has exercised its discretion to refuse
grant of leave and that discretion appears to have been
properly exercised, the correct course for the Trial Court
would be to dismiss the application at Exhibit D-28 in its
futile. Consequently, the application at Exhibit D-28 stands
rejected as a whole.

8.   Considering that the counterclaim of the Petitioner in
Regular Civil Suit No. 26/2023 is now to be tried, and it is
prior in point of time to the filing of Special Civil Suit No.
153/2023, which is a partition suit pending amongst the very
same parties before the Civil Judge Senior Division at
Mapusa, this may lead to conflicting Decrees and
multiplicity of the proceedings. Under these circumstances,
I deem it appropriate to exercise jurisdiction under Section
24 of the CPC to transfer Regular Civil Suit No. 26/2023
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from the file of Civil Judge Junior Division at Pernem to the
Court of the Civil Judge Senior Division at ‘B’ Court at
Mapusa with a further direction that Regular Civil Suit No.
26/2023 after being renumbered by the Court of Civil Judge
Senior Division at Mapusa shall be heard along with Special
Civil Suit No. 153/2023/B; the Civil Court at Mapusa shall
consolidate the trials in the two suits, since all parties are
common to the suits and the Petitioner Sudhir shall first lead
evidence and complete his evidence in Regular Civil Suit
No. 26/2023, after which the Plaintiff in Special Civil Suit
No. 153/2023, Anand, would follow and on completion of
his evidence, Defendant No. 3 and 4 i.e. Mrudula and
Pramod shall lead their evidence. It is open for the Civil
Court at Mapusa to then pass a common Decree or separate
Decrees, but rendered at the same time.

9.    Rule is made absolute in the above terms. The petition
stands disposed of.

10.   The   Registrar   (Judicial)         of   this   Court   shall
communicate this order to both the Court of the Civil Judge
Senior Division ‘B’ Court Mapusa and the Court of the Civil
Judge Junior Division, at Pernem, for necessary action.




                                         VALMIKI MENEZES, J.
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