Bombay High Court

PRALHAD ANANDRAO PATILversusHINDURAO NIVRUTTI SHINDE AND ORS.

Disposal: Allowed

Holding

The procedural code does not require permission to file a counter claim, rendering the order granting such permission unsustainable.

Summary

Petitioner Pralhad Anandrao Patil filed a writ petition challenging an order that allowed him to file a counter claim under Exhibit‑44. The respondents contended that the procedural code does not require any permission to file a counter claim and that the order was therefore unsustainable. The Court examined the legal position and agreed that the Code of Civil Procedure does not contemplate a need for prior permission to institute a counter claim. Consequently, the order granting such permission was held to be untenable. However, the Court emphasized that the respondent's right to seek relief cannot be barred and she may file the appropriate proceedings as permitted by law. The writ petition was allowed in terms of prayer clause ‘a’, without expressing any view on the merits of the underlying dispute.

Issues considered

Whether the procedural code requires permission to file a counter claim
Whether the order granting permission to file a counter claim is sustainable
Whether the remedy for the respondent can be foreclosed

Subjects

counter claim
procedural code
writ petition
permission
remedy
High Court of Bombay

Judgment

                                                       34-WP-4325-2026 (C).doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIRCUIT BENCH AT KOLHAPUR

                       CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO. 4325 OF 2026

Pralhad Anandrao Patil                                               ...Petitioner
      Versus
Hindurao Nivrutti Shinde And Ors.                                ...Respondents

                                 …..
Adv. Nikhil Pawar (through V.C.) a/w Adv. Manasi Patil, Advocate for
Petitioner.
Adv. Umesh Pawar a/w Adv. Sayali Mane, Advocate for Respondent
No.1(A).
                                 …..


                                      CORAM : SHAILESH P. BRAHME, J.

                                      DATE     : 06th OCTOBER, 2026.

P.C. :

           Heard.

2.         The respondent No. 1A is the only contesting party in this matter.

Though couple of respondents are unserved, still matter can be taken

up for final disposal.

3.         The counsel appearing for both sides are unanimous that the

present case is covered by judgment dated 20.08.2026 rendered by this

Court in the matter of Sou. Geeta Viraj Bhagwag and others Versus

Gurav Murlidhar Bade in Writ Petition No. 1554 of 2026.

4.         The application Exhibit - 44 was presented seeking permission to



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file counter claim, which is allowed by the impugned order. The

procedural code does not contemplate any permission to be sought for

filing counter claim. There is substance in the contention of the counsel

for the petitioner. Neither the application Exhibit - 44 was tenable, nor

the order passed thereon is sustainable.

5.         Considering   the   legal   position,   learned   counsel      for     the

respondent No. 1 has graciously conceded the position.

6.         However, this Court cannot overlook that the remedy for the

respondent No. 1A to seek relief cannot be foreclosed. It would be open

for her to file the proceedings as is permissible in law.

7.         The writ petition is allowed in terms of prayer Clause ‘a’ and the

respondent No.1A shall have liberty to file the proceedings as is

permissible in law.

8.         It is clarified that this Court has not expressed any opinion on the

merits of the matter.

                                                   [ SHAILESH P. BRAHME, J.]




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