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Shanta Narayan Purushottam Naik Dessai & Others v/s Umesh Ganesh Naik Dessai & Others

    Writ Petition No. 625 of 2017

    Decided On, 13 November 2017

    At, In the High Court of Bombay at Goa


    For the Petitioners: S.D. Padiyar, S. Bhangi, Advocates. For the Respondents: -----------------

Judgment Text

Oral Judgment:

1. The petitioners, who are original defendant nos.67 to 72 and 82 to 86, are challenging the rejection of an application for amendment of the counterclaim. The amendment was opposed only by the respondent nos.20 to 25 herein.

2. In this petition, a notice for final disposal was issued on 19/07/2017 to the contesting respondent nos.20 to 25. None appears for

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them, though served. The petition is accordingly taken up for final disposal.

3. The impugned order shows that the learned Trial Court in para 6 of the impugned order, has come to the conclusion that no new case is sought to be made out by the petitioners by way of proposed amendment. It can, thus, be seen that on merits, the Trial Court was with the petitioners. The amendment appears to have been refused on the ground that the defendant nos.67 to 72 13 WP625/17 and the defendant nos.82 to 86 have filed Written Statement and Counterclaim with separate cause title and the cause title to the Written Statement is the same as that of the suit. In other words, the learned Trial Court found that the cause title of the Counterclaim is given separately although the Counterclaim is filed against original plaintiff and some of the co-defendants, who are parties to the suit. The learned Trial Court has relied upon the decision of this Court in the case of Samrathrai Khetsidas Vs. Kasturbhai Jagabhai; 1929 Law Suit (Bom) 153.

4. Shri Padiyar, the learned Counsel for the petitioners has relied upon the Bombay Amendment introducing Rule 15 to Order VIII of Code of Civil Procedure (the Code, for short), which reads thus:

“Where the counter-claim involves in addition to the plaintiff other persons also, the defendant to add further title to the title of the written statement and deliver copies of his written statement to such persons as are already parties to the suit:-

Where a defendant by a written statement sets up any counter-claim, which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his written statement a further title similar to the title in a plaint, setting forth the names of all the persons who, if such counter-claim were to be enforced by a cross-suit, would be defendants to such cross-suit, and shall deliver copies of his written statement to such of them as are already parties to the suit within the period within which he is required to deliver it to the plaintiff.”

5. It is contended that reliance on the decision in the case ofSamrathrai Khetsidas (supra) is misplaced, in as much as, that was a case arising out of Bombay High Court Original Side Rules, which are not applicable to the suit. It is also submitted that at the relevant time, there was no provision for a Counterclaim being raised by the defendant, which has been subsequently introduced in the Code by the 1976 amendment.

6. I have carefully considered the circumstances and the submissions made.

7. Admittedly, the provisions of Rule 15 of Order VIII of the Code were not brought to the notice of the learned Trial Court. The reliance on the decision in the case of Samrathrai Khetsidas (supra), appears to be misplaced in as much as that was a case, where the High Court Original Side Rules were applicable. In such circumstances, I find it appropriate to remit the application back to the Trial Court for deciding it afresh according to law. It may not be out of place to mention that except the respondent nos.20 to 25 herein, the other defendants and the original plaintiffs had not opposed the application as is recorded in the impugned order.

8. In the circumstances, the petition is partly allowed. The impugned order is hereby set aside. The application for amendment is remitted back to the learned Trial Court for deciding it afresh, after hearing the parties in accordance with law. The petition is disposed of in the aforesaid terms, with no order as to costs.

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