ABASO SHIVDAS BANDGARversusRAVINDRA SHIVDAS BANDGAR AND ORS

2026:BHC-AS:20923

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO.4757 OF 2026

            Abaso Shivdas Bandgar                                ...    Petitioner
                 versus
            Ravindra Shivdas Bandgar and Ors.                    …      Respondents

            Mr. Bhalchandra Shinde, for Petitioner.

                                CORAM:       N.J.JAMADAR, J.

                                DATE :       28 APRIL 2026

            P.C.

            1.      Heard the learned Counsel for the Petitioner.

            2.      The challenge in this Petition is to an order dated 20 January 2026,

            whereby the learned Civil Judge has dismissed the application preferred by

            the Petitioner to file a counter-claim in a suit instituted in the year 2014.

            3.      The Respondents – Plaintiffs have filed a suit for partition and separate

            possession of the properties described in paragraph No.1 of the plaint. The

            Defendant has filed the written statement in the year 2014 itself.        In the said

            written statement, the Petitioner had not claimed that there were other joint

            family properties which were not brought into the common hotchpot. After the

            settlement of the issues and the filing of an affidavit in lieu of examination in

            chief, the Petitioner filed an application seeking permission to file a counter-

            claim contending, inter alia, that the properties described in paragraph Nos.1a

            to 1m in the counter-claim, are the joint family properties.


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4.       Learned Civil Judge was persuaded to dismiss the application placing

reliance on the judgment of the Supreme Court in the case of Ashok Kumar

Kalra V/s. Wind CDR Surendra Agnihotri 1 as the counter-claim was filed

after the settlement of the issues.

5.       Learned Counsel for the Petitioner submitted that the trial Court has

taken a hyper-technical view of the matter. Since the Petitioner – Defendant

No.1 was seeking to file a counter-claim so as to bring all the joint family

properties into the common hotchpot, the trial Court ought to have allowed the

counter-claim.

6.       In the case of Ashok Kumar Kalra (supra), the Supreme Court by a

majority judgment, enunciated that the the counter-claim shall not be

permitted to be filed after the settlement of the issues. The majority view, in

paragraph No.21, reads as under :

               “21.     We sum up our findings, that Order 8 Rule 6-A CPC
               does not put an embargo on filing the counter-claim after filing
               the written statement, rather the restriction is only with respect
               to the accrual of the cause of action. Having said so, this does
               not give absolute right to the defendant to file the counter-
               claim with substantive delay, even if the limitation period
               prescribed has not elapsed.       The court has to take into
               consideration the outer limit for filing the counter-claim, which
               is pegged till the issues are framed……”



1    (2020) 2 SCC 394

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7.     In a partly supplementing and dissenting opinion, Hon’ble Justice

Mohan M. Shantanagoudar, observed that, in exceptional circumstances,

counter-claim may be permitted to be filed till the stage of commencement of

recording of evidence on behalf of the Plaintiff. The observations of the

Hon’ble Lordship in para 60 read as under :

            “60.   Having considered the previous judgments of this
            Court on counterclaims, the language employed in the rules
            related thereto, as well as the intention of the Legislature, I
            conclude that it is not mandatory for a counterclaim to be
            filed along with the written statement. The Court, in its
            discretion, may allow a counterclaim to be filed after the filing
            of the written statement, in view of the considerations
            mentioned in the preceding paragraph. However, propriety
            requires that such discretion should ordinarily be exercised
            to allow the filing of a counter claim till the framing of issues
            for trial. To this extent, I concur with the conclusion reached
            by my learned Brothers. However, for the reasons stated
            above, I am of the view that in exceptional circumstances, a
            counterclaim may be permitted to be filed after a written
            statement till the stage of commencement of recording of the
            evidence on behalf of the plaintiff.”


8.    In the case at hand, even if the case of the Defendant is construed

rather generously, yet the Defendant does not seem to be entitled to have the

benefit of the special dispensation to file the counter-claim after the settlement

of the issues on account of exceptional circumstances. The trial Court has


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                      recorded in para 11 of the impugned order that the Plaintiff had filed an

                      affidavit in lieu of examination in chief and further examination in chief of the

                      Plaintiff was recorded on the same day. Thereafter, the Petitioner filed an

                      application seeking permission to file the counter-claim. It cannot be, thus,

                      said that the evidence has not commenced.

                      9.       In any event, this Court finds that the written statement was filed by the

                      Petitioner in the year 2014. The non-inclusion of the joint family properties in

                      the suit for partition was such a notorious fact that the Petitioner – Defendant

                      No.1 ought not to have missed to raise the said ground at the first possible

                      opportunity.

                      10.      In this view of the matter, the learned Civil Judge was justified in

                      rejecting the application to file a counter-claim. There is no legal infirmity in

                      the impugned order.

                      11.      The Writ Petition stands dismissed.




                                                                           ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 02/05/2026 16:28:06