Mahesh Govindji Trivedi vs Bakul Maganlal Vyas & Ors.

HELD: 1.1 In order dated 26.02.2021, this Court took note of the submissions made by the parties, including the anxiety of the appellant to dispose of the property in view of his advanced age as also the undertaking of the prospective purchasers to abide by the outcome of the suit. After interacting with the learned counsel for the concerned parties, this Court passed the order delineating the conditions agreed upon by the appellant and the prospective purchasers. This Court also took note of the apprehension expressed on behalf of the plaintiffs-respondents about the legal heirs of the appellant later on claiming rights in the property and counter submissions in this regard on behalf of the appellant. Thus, having settled the matter relating to the prayer of the appellant for leave to transfer the right, title and interest in the property in question, this Court expected all the parties to extend the co-operation in early disposal of the suit as already directed by the Division Bench of the High Court. [Para 6][578-E-H; 579-A]

1.2 The rules of procedure are intended to subserve the cause of justice rather than to punish the parties in conduct of their case. The counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement. Indisputably, the counter-claim was filed on 07.09.2018 and until that date, issues had not been framed in the suit. In fact, the issues were framed only on 05.12.2018, the very date on which the learned Single Judge in the first round of these proceedings took the counter-claim off the record for no permission/leave having been sought for its presentation. In appeal against the order dated 05.12.2018, the Division Bench permitted filing of the requisite application seeking permission to file the counterclaim, while taking note of the submissions of the plaintiffsrespondents that they will not raise an objection to such application on the ground that the issues had already been framed & ORS.

and documentary evidence had been presented; and the Division Bench expected the learned Single Judge to deal with such an application on its own merits. Pursuant to the liberty so granted by the Division Bench, the appellant moved the application seeking permission to place the counterclaim on record and in support thereof, filed a detailed affidavit stating specific reasons for which the counter-claim was sought to be filed, including that of avoiding the multiplicity of proceedings. The appellant also pointed out the fact that he was earlier engaged in the dispute concerning succession to the property, which came to be settled in his favour only in the year 2017. The learned Single Judge, while passing the order dated 02.05.2019, did not elaborate much on the other aspects but pointed out the reason for accepting the prayer of the appellant that it would avoid multiplicity of proceedings; and in all fairness to the plaintiffs respondents, kept all their defences, including as to limitation, specifically open. The said order dated 02.05.2019, even if passed by the learned Single Judge on the very first day of consideration of the application moved by the appellant, had been a just and proper order which was conducive to the proper progression of the proceedings while avoiding multiplicity of litigation. There was no justified reason for the Division Bench to have interfered with the order so passed by the learned Single Judge. In the totality of the facts and circumstances of the present case, neither the requirements of Order VIII Rule 6-A CPC or Rule 95 of the Rules nor the principles enunciated and explained in Ashok Kumar Kalra operate as a bar over the prayer of the appellant for taking the belatedly filed counter-claim on record, which was indeed filed before framing of issues. [Paras 14, 14.1][589-D-H; 590-A-D]

Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Ors. (2020) 2 SCC 394 : [2019] 17 SCR 214 – relied on.

1.3 Apart from the above, there are a few other reasons, for which the impugned order of the Division Bench to be wholly unjustified. In the order dated 26.02.2021, this Court had provided for expeditious proceedings while taking note of the submissions of the parties and while ensuring that even if the appellant shall transfer his right, title and interest to third parties, such transferees will not seek filing of further pleadings and shall remain bound by the proceedings of the suit in question. In that context, it was provided that the proposed purchasers shall be impleaded in the suit; and their undertaking was also recorded that they will adopt the written statement and counter-claim filed by the appellant and will not make any request for filing further written statements or independent written statement as such. This Court further provided that the suit shall proceed from the stage where it was pending and the proposed purchasers will not move any application for filing independent evidence/document. [Paras 15, 15.1][590-E-H]

1.4 True it is, as contended on behalf of the respondents, that the subject matter of the said SLP before this Court was of the proposition of the appellant to transfer the suit property to a third party and not regarding the permissibility to file counterclaim but, for this reason alone the substance and impact of the order passed by this Court is not whittled down. Even when the subject matter of the said SLP related to the proposition of the appellant to transfer the suit property to a third party and even when the arrangement provided by the order dated 26.02.2021 was essentially concerning the defendant-appellant and the prospective transferees, fact of the matter remains that the said order was passed in the presence of the plaintiffs-respondents, whose apprehension of a different nature, about the likely claims in future by the legal heirs of the appellant, was also taken note of with its response on behalf of the appellant. This Court, thereafter, re-emphasised the requirements of expeditious proceedings. When construed on its pith and substance, the impact of the said order dated 26.02.2021 on the procedural aspect concerning pleadings has clearly been that existence of the counter-claim on record was taken by this Court as a fait accompli; and this order left a little, rather nil, scope for upsetting the existing pleadings. The expectations had been that the proceedings in the suit coupled with the counter-claim shall be taken forward from the given stage onwards. [Paras 15.2 and 15.3][590-H; 591-A-D]

& ORS.

1.5 Even when this Court’s order dated 26.02.2021 was placed before it, the Division Bench of the High Court did not consider its purport and meaning as also its impact on the suit proceedings and on the question of filing of counter-claim. There was no reason for re-opening of the question relating to the filing of counter-claim after the said order of this Court dated 26.02.2021. Apart from this, on the date on which the Division Bench chose to upset the proceedings of the suit in question by setting aside the order dated 02.05.2019, much progression had taken place, including the filing of written statement by the plaintiffs to such counter-claim; framing of issues on the counterclaim; and recording of the plaintiffs’ evidence. Moreover, expeditious proceedings were required to be ensured by all the concerned, in view of the earlier orders passed by the Division Bench of the High Court as also by this Court. It appears that the Division Bench of the High Court, while passing the impugned order dated 30.11.2021, proceeded in a rather cursory manner in directing reconsideration of the prayer of the appellant for taking the counter-claim on record without considering the relevant aspects of the proceedings in the suit and the law applicable thereto as also without considering the likely impact of its order on the proceedings, which had already taken place and which were under progress. Viewed from any angle, the impugned order deserves to be set aside. The impugned order dated 30.11.2021 as passed by the Division Bench of the High Court is set aside; and order dated 02.05.2019 as passed by the learned Single Judge is restored. [Paras 15.4, 16, 16.1, 19][591-E-H; 592-A-B, E]