-WP4276-2026+.DOC

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4276 OF 2026

1. Mandar Suresh Bhatwadekar

2. Dr. Shrirang Arun Limaye

...Petitioners

Versus

Shree Nav Vinayak Co-operative Housing

Society Ltd. (Housing Society), registered

under the provisions of the Maharashtra

Co-operative Societies Act, 1960 …Respondent

WITH

WRIT PETITION NO. 4362 OF 2026

1. Mandar Suresh Bhatwadekar

2. Dr. Shrirang Arun Limaye

...Petitioners

Versus

Shree Nav Vinayak Co-operative Housing

Society Ltd. (Housing Society), registered

under the provisions of the Maharashtra

Co-operative Societies Act, 1960 …Respondent

Mr. R. A. Dada, Senior Advocate, a/w Mr. Nitin P. Deshpande,

for the Petitioners.

Mr. Shailendra Kanetkar, for the Respondent.

CORAM: N. J. JAMADAR, J.

RESERVED ON: 4

th

MAY, 2026

PRONOUNCED ON:15

th

JUNE, 2026

JUDGMENT:-

1.Rule. Rule made returnable forthwith and, with the

consent of the learned Counsel for the parties, heard �nally.

1/26

SANTOSH

SUBHASH

KULKARNI

Digitally signed

by SANTOSH

SUBHASH

KULKARNI

Date:

2026.06.15

22:00:52 +0530

-WP4276-2026+.DOC

2.These petitions under Article 227 of the Constitution of

India assail the legality, propriety and correctness of identical

orders passed by the learned Civil Judge in RCS/2249/20 19

and RCS/2248/2019, whereby the applications preferred by the

petitioners – defendant Nos.1 and 2 seeking permission to �le

counter-claim in the respective suits came to be rejected.

3.Since the petitions arise out of almost identical fact-

situation, they were heard together �nally with the consent of

the Counsel for the parties.

4.For the sake of the convenience and clarity, the parties are

hereinafter referred to in the capacity in which they are arrayed

in the respective suits.

5.Shorn of unnecessary details, the background facts

leading to these petitions can be stated as under:

5.1The plaintiff is a Housing Society registered under the

provisions of Maharashtra Co-operative Societies Act 1960 (“the

Act, 1960”). The plaintiff Society had allotted plot No.3 (which is

the subject matter of RCS/2248/2019) and plot No.4 (which is

the subject matter of RCS/2249/2019) to the different No.1 in

the respective suits.

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5.2The defendant No.1 contends, the plaintiff - Society had

issued letter of allotment and share certi�cate to defendant No.1.

However, the society did not take any initiative to execute a lease

deed in favor of defendant No.1. In the year 2012, defendant

No.1 called upon the society to execute the lease deed. Allegedly

the society raised an unreasonable demand as a precond ition

for the execution of the lease deed.

5.3In the meanwhile, defendant No.1 entered into a

transaction to assign the leasehold rights in favour of defendant

No.2. Thus, on 29

th

June, 2017, defendant No.1 sought NOC for

transfer of the leasehold rights and shares in favour of

defendant No.2. Defendant Nos.1 and 2 entered into a MOU for

transfer of the leasehold rights and shares.

5.4As the plaintiff rejected the application for NOC, the

defendants �led a proceeding before the Deputy Registrar, Co-

operative Societies, seeking directions to the Society to give NOC

for the transfer of the plot. By an order dated 11

th

January,

2018, the Deputy Registrar, Co-operative Societies, allowed the

said application. The said order was af�rmed in revision by the

Divisional Joint Registrar by a judgment and order dated 31

st

May, 2019. Eventually, pursuant to the order dated 1

st

June,

2019 passed by the Deputy Registrar,, Co-operative Societies,

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the authorized of�cer issued NOC on 4

th

June, 2019. The

plaintiff was also directed to admit defendant No.2 as a member

of the society. Thereupon, under a registered Agreeme nt for

Assignment of leasehold rights and transfer of shares dated 23

rd

October, 2019, defendant No.1 transferred the leasehold rights

in the subject plots in favor of defendant No.2.

5.5The Plaintiff assailed the legality and validity of the said

instrument by instituting the suits,

inter alia, seeking a

declaration that the said Agreement for Assignment of leasehold

rights and transfer of shares in respect of the subject plot was

sham, bogus, illegal,

void ab initio, and not binding on the

Plaintiff Society, and also sought to restrain the Defendants

from creating any third-party interest in the subject plot, taking

forcible possession thereof, and constructing any structure on

the subject plots.

5.6Simultaneously, the orders passed by the Registrar under

the Act, 1960 were assailed before the State Governmen t in

revision. The State Government allowed the revision application

and set aside the orders passed by the Registrar under the Act,

1960.

6.Being aggrieved, the defendants preferred Writ Petition

Nos. 3011 of 2024 and 3169 of 2024. By a common ord er dated

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19

th

November, 2025, a learned Single Judge declined to

interfere with the order passed by the State Governmen t,

observing that the Registrar, while acting under Section 79(2) of

the Act, 1960, had no jurisdiction to decide disputed questions

of fact. This Court, however, observed that it was open to any

aggrieved party to take appropriate proceedings before a

competent Court for declaration and enforcement of their rights,

and that the Court had expressed no opinion on the correctness

of the rival claims and the parties were free to pursue their

remedies.

7.In Special Leave to Appeal (C) No(s).36837/2025, by an

order dated 18

th

December 2025, the Supreme Court declined to

interfere with the order passed by this Court. The trial Court

was directed to decide the suit expeditiously and conclude the

same within one year.

8.The Defendants preferred an application seeking

permission to �le a counter-claim purportedly availing the

liberty granted by this Court in the aforesaid order dated 19

th

November, 2025 passed in Writ Petition Nos. 3011 of 2024 and

3169 of 2024 to initiate appropriate proceedings. It wa s

asserted that this Court as well as the Supreme Court had

made it clear that the Defendants would have an opportunity to

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seek declaration and enforcement of their legal rights. Thus, the

Defendants �led applications seeking permission to �le the

counter-claim under the provisions of Order VIII Rule 6A of the

Code.

9.By way of the counter-claim, the Defendants sought a

decree of speci�c performance and enforcement of statutory

obligations qua the Plaintiff Society, and direction the Society to

execute and register the lease deed in respect of the subject plot

in favour of Defendant No. 1, direction to the Managing

Committee of the Society to execute and register the necessary

deed of surrender and a subsequent and simultaneous le ase

deed in respect of the subject plot in favour of Defendant No. 2.

10.The Plaintiff resisted the said application. The proposed

counter-claim was stated to be beyond the scope of the

provisions contained in Order VIII Rule 6A of the Code of Civil

Procedure, 1908 (“the Code”). There was no privity of contract

between plaintiff and Defendant No. 2. By way of the counter-

claim, the Defendants were totally altering the subject matter of

the suit and exponentially widening its scope, which has been

instituted primarily for declaration that the purported

assignment of lease was illegal, void and not binding upon the

Plaintiff. Even otherwise, the Defendants had failed to ascribe

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any reason for the huge delay of more than �ve years in �ling

the counter-claim. Thus, the counter-claim was

ex facie barred

by law of limitation.

11.By the impugned order, the learned Civil Judge was

persuaded to reject the application seeking permission to �le

the counter-claim, holding that the Defendants had failed to

explain the delay in �ling the counter-claim. There was no

pleading to indicate that the Plaintiff had refused to perform its

part of the contract. The counter-claim appeared to be barred by

law of limitation. There was no privity of contract between the

Plaintiff and Defendant No. 2. The learned Judge also recorded

that the counter-claim appeared to be premature as there was

nothing to demonstrate that the Plaintiff had refused to execute

the lease deed in favour of Defendant No. 1, in the respective

suit.

12.Being aggrieved, the Defendants have invoked the writ

jurisdiction.

13.I have heard Mr. Ra�q Dada, the learned Senior Advocate

for the Petitioners, and Mr. Shailendra Kanetkar, the learned

Counsel for Respondent No. 2 Society in both the petitions. With

the assistance of the learned Counsel for the parties, I have

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perused the material on record, including the pleadings and the

various orders passed by this Court and the Supreme Court.

14.Mr. Dada, the learned Senior Advocate for the Petitioners,

would submit that the learned Civil Judge completely

misconstrued the import of the provisions contained in Order

VIII Rule 6A of the Code. The purpose for which an ena bling

provision has been made in the Code to permit a Defendant to

�le a counter-claim, was completely lost sight of. In the process,

Mr. Dada would urge, the learned Civil Judge unjusti�ably

imported the aspect of delay. It was submitted since th e

counter-claim was �led before settlement of issues, the

Defendants were not enjoined to offer any explanation for the

purported delay. Attention of the Court was invited to the

enunciation of law in the case of Ashok Kumar Kalra vs Wing

Commander Surendra Agnihotri

1

.

15.As a second limb of the submission, Mr. Dada would urge,

the learned Civil Judge has recorded contradictory and

mutually destructive �ndings. On the one hand, it was observed

that the counter-claim was barred by the law of limitation. On

the other hand, it was also recorded that the counter-claim was

1 (2020) 2 SCC 394.

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premature. These �ndings are completely incongruous and

contradictory.

16.Mr. Dada further submitted, with a degree of vehemence,

that the learned Judge committed a manifest error in n ot

appreciating that, in the strict sense, no period of limitation has

been prescribed for �ling a counter-claim. The only condition to

be satis�ed is that the cause of action to �le counter-claim must

have arisen to the Defendant before or after the �ling of the suit.

In the case at hand, Mr. Dada would urge that, �ling of the

counter-claim became necessary as the State Government had

set aside the order passed by the Registrar under the Act of

1960 to grant NOC for transfer of the leasehold rights; pursuant

to which the registered Agreements for Assignment were

executed by respective Defendant No.1 in favour of Defendant

No.2. When that order was af�rmed by the High Court and,

subsequently, by the Supreme Court, the necessity to �le the

counter-claim arose. Without properly appreciating the

circumstances in which the Defendants were constrained to �le

the counter-claim, the learned Civil Judge unjusti�ably non-

suited the Defendants.

17.In contrast, Mr. Kanetkar, the learned Counsel for the

Plaintiff, would submit that the learned Civil Judge has

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correctly exercised the discretion. From a bare perusal of the

averments in the proposed counter-claim, especially the clause

on the accrual of the cause of action, it becomes evidently clear

that the counter-claims were

ex facie barred by law of limitation.

Having found that the counter-claims were barred by law

limitation, the learned Civil Judge rightfully declined to

entertain the counter-claims.

18.Without disputing the position that the counter-claim can

be �led by the Defendant till the settlement of issues in view of

the decision in the case of Ashok Kumar Kalra (supra), Mr.

Kanetkar would urge that the aspect of delay in �ling the

counter-claim cannot be said to be wholly inconsequential or

immaterial. To this end, Mr. Kanetkar placed reliance on the

judgment of this Court in the case of V�aymala Sidling Do�ad v.

State of Maharashtra and others

2

, wherein it was enunciated

that a belated �ling of a counter-claim is not permissible. The

aforesaid decision applies with equal force to the facts of the

present case, submitted Mr. Kanetkar.

19.Inviting the attention of the Court to the averments in the

counter-claim which indicate that the cause of action for �ling

the counter-claim had arisen in October 2012, Mr. Kanetka r

2 2005(3) Mh.L.J. 329.

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would urge that by no stretch of imagination the counter-claim

in respect of such a cause of action, �led in the year 2026, can

be said to be within the stipulated period of limitation. Mr.

Kanetkar would urge that the Plaintiff cannot draw any mileage

from the fact that this Court had granted liberty to the parties

to take out appropriate proceedings before a competent Court.

The said liberty cannot be construed as granting a car te

blanche to the Defendants to �le the counter-claims belatedly

and also beyond the scope of the suit.

20.The aforesaid submissions now fall for consideration.

21.To begin with, it is necessary to note that the Plaintiff is

not only assailing the legality and validity of the Agreements for

Assignment, but the very allotment of the subject plots to

Defendant No. 1 was sought to be put in contest. In the plaint,

the Plaintiff has made an endeavour to assert that the erstwhile

Managing Committee had illegally allotted the subject plots in

favour of Defendant No. 1 in gross violation of the prescribed

procedure. Indeed, the suit came to be instituted a fter

Defendant No. 1 executed registered instrument in favour of

Defendant No. 2. Secondly, the Registrar passed order s

purportedly in exercise of the powers under Section 79 of the

Act of 1960 directing issuance of NOC and admission of

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Defendant No. 2 as a member of the Plaintiff Society. Thirdly, as

noted above, the orders passed by the Registrar were eventually

set aside by the State Government in revision, and the said

order of the State Government has attained �nality.

22.In the background of the aforesaid rather uncontroverted

facts, the substratum of the case of the Defendants was that,

this Court while dismissing the writ petitions had kept open the

liberty to take out appropriate proceedings before the competent

Court and, therefore, the �ling of the counter-claim, after the

order dated 19

th

November, 2025 in Writ Petition Nos. 3011 of

2024 and 3169 of 2024 attained �nality, was in order.

23.The provision contained in Order VIII Rule 6A reads as

under:

“Order 8 Rule 6A - Counter-claim by defendant:

(1) A defendant in a suit may, in addition to his right of

pleading a set-off under rule 6, set up, by way of counter-

claim against the claim of the plaintiff, any right or claim in

respect of a cause of action accruing to the defendan t

against the plaintiff either before or after the �ling of the suit

but before the defendant has delivered his defence or before

the time limited for delivering his defence has expired,

whether such counter-claim is in the nature of a claim for

damages or not.

Provided that such counter-claim shall not exceed the

pecuniary limits of the jurisdiction of the court.

(2) Such counter-claim shall have the same effect as a

cross-suit so as to enable the Court to pronounce a �nal

judgment in the same suit, both on the original claim and on

the counter-claim.

(3) The plaintiff shall be at liberty to �le a written

statement in answer to the counter-claim of the defendant

within such period as may be �xed by the Court.

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(4) The counter-claim shall be treated as a plaint and

governed by the rules applicable to plaints”

24.The phraseology of the afore-extracted rule makes it

explicitly clear that, a Defendant in a suit may, in addition to his

right of pleading a set-off under rule 6, set up, by way of

counter-claim against the claim of the Plaintiff, any right or

claim in respect of a cause of action which has accrued to the

Defendant against the Plaintiff, either before or after the �ling of

the suit, but before the Defendant has delivered his defence or

before the time limited for delivery his defence has expired. A

counter-claim has the same effect as a cross-suit. It is governed

by the rules of pleadings applicable to plaints. Under Order VIII

Rule 6G, the rules relating to a written statement by a

Defendant apply to the written statement �led in answer to a

counter-claim.

25.It is pertinent to note that, from the text of rule 6A of

Order VIII, a time limit for �ling of the counter-claim is not

discernible. Instead, the right to �le a counter-claim appears to

be inextricably connected with the accrual of the cause of action

and the limitation on �ling of the counter-claim is with reference

to the time at which the cause of action has arisen. The outer

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limit for accrual of such cause of action is the �ling of the

defence by the Defendant.

26.At this juncture, it is imperative to note the object and

purpose of the provisions of the rule that enables the �ling of

the counter-claim. The primary object is to avoid multiplicity of

judicial proceedings and save upon the Court's time as also to

obviate the inconvenience to the parties by enabling

determination of the claims and counter-claims and thereb y

resolve all the disputes between the same parties in the course

of the same proceeding.

27.In the case of Ramesh Chand Ardawatiya v. Anil

Panjwani

3

, after expounding the aforesaid purpose of the

enabling provision, the Supreme Court enunciated, as under:

“15. ….If the consequence of permitting a counter-claim

either by way of amendment or by way of subsequent pleading

would be prolonging of the trial, complicating the otherwise

smooth �ow of proceedings or causing a delay in the progress

of the suit by forcing a retreat on the steps already taken by

the court, the court would be justi�ed in exercising its

discretion not in favour of permitting a belated counter-claim.

Generally speaking, a counter-claim not contained in the

original written statement may be refused to be taken on

record if the issues have already been framed and the case set

down for trial, and more so when the trial has already

commenced. (para 28).

3 (2003) 7 SCC 350.

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28.In the case of Bollepanda P. Poonacha and Anr. V/s.

K.M.Madapa

4

, the Supreme Court after adverting to the

aforesaid decision, enunciated the law as under :

“11. The provision of Order VIII Rule 6A must

beconsidered having regard to the aforementioned

provisions. A right to �le counter claim is an

additional right. It may be �led in respect of any

right or claim, the cause of action therefor, however,

must accrue either before or after the �ling of the

suit but before the defendant has raised his defence.

Respondent in his application for amendment of

written statement categorically raised the plea that

the appellants had tresspassed on the lands, in

question, in the summer of 1998. Cause of action for

�ling the counter claim inter alia was said to have

arisen at that time. It was so explicitly stated in the

said application. The said application, in our

opinion, was, thus, clearly not maintainable. The

decision of Sri Ryaz Ahmed (supra) is based on the

decision of this Court in in Baldev Singh V/s.

Manohar Singh and Anr.

5

………….

15. A belated counter claim must be discouraged by

this Court. See Ramesh Chand Ardawatiya versus

Anil Panjwani (supra). We are, however, not

unmindful of the decisions of this Court where a

defendant has been allowed to amend his written

statement so as to enable him to elaborate his

defence or to take additional pleas in support of his

case. The Court in such matters has a wide

discretion. It must, however, subserve the ultimate

cause of justice. It may be true that further litigation

should be endeavoured to be avoided. It may also be

true that joinder of several causes of action in a suit

is permissible. The Court, must, however, exercise

the discretionary jurisdiction in a judicious manner.

While considering that subservance of justice is the

ultimate goal, the statutory limitation shall not be

overstepped. Grant of relief will depend upon the

factual background involved in each case. The Court,

while undoubtedly would take into consideration the

questions of serious injustice or irreparable loss, but

nevertheless should bear in mind that a provision for

amendment of pleadings are not available as a

4 (208) 13 SCC 179.

5 (2006) 6 SCC 498.

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matter of right under all circumstances. One cause

of action, cannot be allowed to be substituted by

another. Ordinarily, effect of an admission made in

earlier pleadings shall not be permitted to be taken

away. See State of A.P. V/s. Pioneer Builders

6

and

Steel Authority of India Ltd. V/s. Union of India

7

and

Himmat Singh V/s. ICI India Ltd.

8

”

(emphasis supplied)

17. In the case of V�ay Prakash Jarath V/s. Tej Prakash

Jarath

9

, the Supreme Court set aside an order passed by

the High Court declining Defendant No.3 and 4 therein, to

�le counter claim after two and half years of the framing

of the issues. The Supreme Court noted that the

Respondents/Plaintiffs’ evidence was still being recorded

by the trial Court when the counter-claim was �led. Nor it

could be shown that any prejudice would be caused to the

Plaintiffs if counter counter-claim was to be adjudicated

upon alongwith the main suit. Thus, no serious injustice

or irreparable loss as expressed in para 15 of Bollepanda

P. Poonacha (supra) would be suffered by the Plaintiff in

that case.

18. Noticing the difference in the enunciation of law in the

aforesaid cases, a reference was made to the larger bench

6 (2006) 12 SCC 119.

7 (2006) 12 SCC 233.

8 (2008) 3 SCC 571.

9 (2016) 11 SCC 800.

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in the case of Ashok Kumar Kalra (supra). The Supreme

Court considered the following questions :

“6.1 (i) Whether Order 8 Rule 6-A CPC mandates an

embargo on �ling the counter-claim after �ling the

written statement ?

6.2 (ii) If the answer to the aforesaid question is in the

negative, then what are the restrictions on �ling the

counter-claim after �ling of the written statement ?

19. After adverting to the provisions of the Code and

the precedents, the Supreme Court observed that the re

cannot be any hard and fast rule to say that in a

particular time the counterclaim has to be �led, by

curtailing the discretion conferred on the Courts. The trial

court has to exercise the discretion judiciously and come

to a de�nite conclusion that by allowing the counterclaim,

no prejudice is caused to the opposite party, process is

not unduly delayed and the same is in the best interest of

justice and as per the objects sought to be achieved

through the amendment. However, the defendant cannot

be permitted to �le counterclaim after the issues are

framed and the suit has proceeded substantially. It would

defeat the cause of justice and be detrimental to the

principle of speedy justice as enshrined in the objects and

reasons for the particular amendment to the Code.

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20. In the said case, the majority culled out the

principles as under :

21. We sum up our �ndings, that Order VIII Rule 6-A

CPC does not put an embargo on �ling the counter-claim

after �ling 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 �le the counterclaim with substantive delay,

even if the limitation period prescribed has not elapsed.

The court has to take into consideration the outer limit

for �ling the counter-claim, which is pegged till the

issues are framed. The court in such cases have the

discretion to entertain �ling of the counte-claim, after

taking into consideration and evaluating inclusive factors

provided below which are only illustrative, though not

exhaustive:

(i) Period of delay.

(ii) Prescribed limitation period for the cause of

action pleaded. (iii) Reason for the delay.

(iv) Defendant’s assertion of his right.

(v) Similarity of cause of action between the main

suit and the counter-claim.

(vi) Cost of fresh litigation.

(vii) Injustice and abuse of process.

(viii) Prejudice to the opposite party.

(ix) and facts and circumstances of each case.

(x) In any case, not after framing of the issues.”

(emphasis supplied)

29.In V�aymala (supra), on which reliance was placed by Mr.

Kanetkar, noticing the aforesaid position in law, this Court

observed as under:

”22. The position in law which thus emerges is that the

Code does not prescribe a de�nite time limit for the �ling of

the counter-claim. Rather the restriction on the right to �le

counter-claim is with reference to the accrual of the cause of

action. It is in the discretion of the court to allow a Defendant

to �le counter claim either by way of amendment in the

written statement or a separate counter-claim, even po st

�ling of the written statement. The considerations of

avoiding multiplicity of proceedings, advancing the cause of

substantive justice, likelihood of prejudice and the possibility

of protraction of the trial, by permitting the �ling of the

counter-claim at a belated stage, principally weigh with the

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Court in exercise of judicious discretion. It is also required to

be kept in view that, generally the question of prejudice to

the defendant may not arise as the defendant would have an

option to pursue his cause of action in a separate suit.”

(emphasis supplied)

30.It is an admitted position that when the applications

seeking permission to �le the counter-claim were �led, the

issues were not settled. Thus, the outer limit for �ling the

counter-claim, pegged till the settlements of issues, by the

majority judgment in the case of Ashok Kumar Kalra (supra)

was not crossed. The question which thus crops up fo r

consideration is whether the delay of about �ve years, since the

�ling of the written statement, disentitles the defendants from

the exercise of discretion in their favour?

31.For an answer, it would be apposite to �rst notice the

clause in the proposed counter-claim as to the accrual of the

cause of action. In paragraph 16 of the proposed counter-claim,

the defendants contend that the cause of action arose on every

occasions on 22

nd

October, 2012, 23

rd

October, 2012, 30

th

October, 2012, 24

th

November, 2012, 21

st

October, 2014 and 28

th

July, 2015, when Defendant No. 1 requested and called upon the

Plaintiff Society to execute the lease deed of the plot in favour of

defendant No. 1 but the plaintiff avoided to do so. It is further

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asserted that the failure of the plaintiff society's to execute the

lease deed amounts to a continuing cause of action.

32. It was submitted on behalf of the plaintiff that, the

aforesaid claim of the defendants as to accrual of the cause of

action renders the counter-claim explicitly barred by limitation,

even if the time was reckoned from the last of the dat es of

accrual of the cause of action. Thus, the learned Civil Judge

was justi�ed in holding that on account of the absence of any

explanation in the application seeking permission to �le the

counter-claim in regard to the huge delay, it was legally

impermissible to �le the counter-claim belatedly, and that, even

otherwise, the reliefs in the counter-claim were

ex facie barred

by law of limitation.

33.The entire gamut of the circumstances, as it emerges from

the various proceedings among the parties, deserves to be

appreciated. First and foremost, the tenor of the plain t is

required to be considered. As noted above, the Society has made

an endeavour to contend that, the very allotment of the subject

plots to Defendant No. 1 and the issuance of the shar e

certi�cates were tainted with illegality. Premised on the

aforesaid stand, an effort was made to assert that Defendant

No.1 did not diligently pursue the matter of execution of the

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lease deed and declined to comply with the demand to pay the

development charges and/or transfer fees and/or other legal

dues to the Plaintiff Society, despite being called upon to do so

in response to the request of Defendant No. 1 to execute the

lease deed. In regard to the communication dated 28

th

June,

2017 addressed by Defendants No.1 to the Plaintiff for issuance

of NOC, the Plaintiff claims to have again intimated Defendant

No. 1 that Defendant No. 1 had not cleared the dues o f the

Plaintiff Society for several years, the Society had resolved to

take action against Defendant No. 1 for recovery of the dues

and, thus, Defendant No. 1 was not entitled for NOC unless all

the legal dues were cleared.

34.Prima facie, a cleavage emerges in the stand of the

Plaintiff. On the one hand, the very initial allotment of the

subject plots was sought to be put in contest. On the other

hand, the default on the part of Defendant No. 1 to clear the

arrears purportedly on account of development charges/transfer

fees and legal dues was stated to be the reason for the refusal to

execute the lease deed and issue the NOC.

35.Secondly, the Plaintiff claims, instead of clearing the legal

dues, Defendant No. 1 approached the authorities unde r the

Act, 1960. The developments pursuant to the orders passed by

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the authorities under the Act, 1960, also bear upon the exercise

of discretion. As noted above, pursuant to the orders passed by

the Registrar, the NOC was issued and the deeds of assignment

were executed by Defendant No. 1 in favour of Defendant No. 2.

Thus, the Plaintiff instituted the suit seeking a declaration that

the said Agreements of Assignment were illegal, void and not

binding upon the Plaintiff. Moreover, till the State Government

set aside the orders passed by the Registrar, the said

Agreements for Assignment was holding the �eld.

36.It is in the aforesaid context, the requirement to seek a

declaration and enforcement of the purported statutor y

obligations of the Plaintiff Society to execute the lease deed

deserve appreciation. Since the Plaintiff was seeking a

declaratary relief qua the Agreements for Assignment, defendant

No.1 did not consider it necessary to seek directions against the

Plaintiff to execute the lease deed was the thrust of t he

submission of Mr. Dada. At this juncture, it may not be

necessary to record a de�nitive �nding on this aspect and the

Court refrains from delving more into the justi�ability of the

explanation sought to be offered as that would be a matter for

adjudication by the trial Court.

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37.The fact, however, remains that till the Agreements of

Assignment were left untouched, there was seemingly no cloud

on the jural relationship sought to be established under the said

Agreement of Assignments. The setting aside of the ord ers

passed by the Registrar under the Act, 1960 and the consequent

af�rmation thereof by this Court, necessitated the liberty

granted by this Court in the order dated 19

th

November, 2025.

Thus, the Court clari�ed that it was open to any aggrieved party

to take appropriate proceedings before a competent Court for

deermination and enforcement of their rights. I, thus, �nd it

dif�cult to accede to the submission of Mr. Kanetkar that the

afroesaid liberty did not enure to the bene�t of the Defendants.

38.The core controversy between the parties also cannot be

lost sight of. Whether the Defendant No. 1 is entitled to

execution of lease deed by the Society in respect of the subject

plots, without the Society insisting for the payment, as claimed,

is at the heart of the controversy. Could the Plaintiff Society

refuse to execute the lease deed? Could the Plaintiff Society

refuse to grant NOC for transfer of purported leasehold rights

by Defendant No. 1 in favour of Defendant No. 2?, are the other

pivotal questions that would warrant adjudication.

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39.In the aforesaid backdrop, if the prayer for permission to

�le the counter-claim is appraised in the light of the enabling

provision, it could hardly be disputed that there is an element of

similarity of cause of action between the suit and the counter-

claim. Common questions of facts and law would arise for

adjudication in the suit as well as the counter-claim. The

objective of resolution of all disputes between the parties in one

proceeding would be better subserved if the counter-claims are

permitted to be �led. The Court does not �nd that there is a

possibility of irretrievable prejudice to the Plaintiff if the

Defendants are permitted to �le the counter-claim. Indeed, the

fate of the reliefs sought in the counter-claim hinges upon the

outcome of the suits. If the Plaintiff succeeds in the suits, the

entitlement of the Defendants to the proposed reliefs claimed in

the counter-claim would become tenuous. On the contrary, if

the Plaintiff fails, Defendant No. 1 would be entitled to enforce

the obligation on the part of the Plaintiff to execute a lease deed

in favour of Defendant No. 1 and, in that event, the further

liability of the Plaintiff to grant NOC for transfer of leasehold

rights by Defendant No. 1 in favour of Defendant No. 2, would

warrant consideration.

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40.If viewed through the prism of the purpose of the enabling

provision, this Court �nds that the objective of avoiding

multiplicity of proceedings and advancing the cause of

substantive justice may be promoted by permitting Defendant

Nos. 1 and 2 to �le the counter-claim.

41.The submission on behalf of the Plaintiff that the counter-

claim is

ex facie barred by the law of limitation cannot be readily

acceded to. In the facts of the case at hand, adverted to above,

the question of limitation

prima facie appears to be a mixed

question of facts and law. It would, therefore, be appropriate to

keep the issues of the reliefs claimed in the counter-claim being

barred by law of limitation and that the Defendants are n ot

otherwise entitled to those reliefs, open adjudication at trial.

42.In conclusion, it can be said that, the learned Civil Judge

appears to have adopted a very rigid approach. The matter was

not evaluated from the perspective of exercise of judi cial

discretion which promotes object of Order VIII Rule 6A of the

Code.

43.The upshot of the consideration is that the petitions

deserve to be allowed.

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44.Hence, the following order:

: O R D E R :

(i)The petitions stand allowed.

(ii)The impugned order passed by the learned Civil Judge in

each of the suits declining permission to �le the counter-claim

stands quashed and set aside.

(iii)The defendants are permitted to �le the counter-claim.

(iv)The issues of the reliefs in the counter-claim being barred

by law of limitation and defendant Nos. 1 and 2 not being

otherwise entitled to the said reliefs, are kept open for

adjudication at the trial.

(v) The defendant No.1 shall �le the counter-claim within the

period of one week from the date of uploading of this order.

(vi)The plaintiff shall be entitled to �le written statement to

the counter-claim within a period of 30 days thereafter.

(vii)The parties shall co-operate with the learned Civil Judge

in the expeditious disposal of the suits and counter-claims in

conformity with the directions of the Supreme Court to dispose

of the suits within the stipulated time frame.

(viii)In the circumstances, there shall be no order as to costs.

[N. J. JAMADAR, J.]

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