IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 17428 OF 2025

1. Minesh Anup Kumar Dhakan

Adult, Aged 50 years, Indian

Inhabitant, Occ: Business,

Residing at Flat No. 3, Janki Niwas,

Bhikaji Lad Marg, Behind Jain

Temple, Dahisar (W), Mumbai – 400 068

2. Nitesh Anup Kumar Dhakan

Adult, Aged 49 yeas, Indian

Inhabitant, Occ : Business,

Residing at Flat No. 3, Janki Niwas,

Bhikaji Lad Marg, Behind Jain

Temple, Dahisar (W), Mumbai – 400 068. ...Petitioners

Versus

1. Suresh Issardas Nichani

Adult, Indian Inhabitant, Residing

at Flat No. 602, 6

th

Floor in

Building No. 4, Shree Giriraj Co. Op.

Housing Society Ltd., C.S. Road No. 5,

Rajendra Complex, Anand Nagar,

Dahisar (East), Mumbai – 400 068.

2. Kavita Suresh Nichani

Adult, Indian Inhabitant, Residing

at Flat No. 602, 6

th

Floor in

Building No. 4, Shree Giriraj Co. Op.

Housing Society Ltd., C.S. Road No. 5,

Rajendra Complex, Anand Nagar,

Dahisar (East), Mumbai – 400 068.

3. Shailesh Vora

Adult of Bombay Indian Inhabitant,

Residing at Shop No. 1, Giriraj Building,

C.S. Road No. 5, Rajendra Complex,

Anand Nagar, Dahisar (East),

Mumbai – 400 068.

SAINATH, PA 1/17

4. Shree Giriraj Co-op. Housing

Society Ltd., registered under

Maharashtra Co-operative Society Act,

1960, CTS No. 1542, CTS Road No. 5,

Rajendra Complex, Dahisar (E),

Mumbai 400 068.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

…Respondents

_ _ _ _ _ _ _ _ _ _

Mr. Saif Dingankar, a/w Tejjas Shah, Mr. Akshay Chorge, for

the Petitioner.

Mr. Tushar Gujjar a/w Ms. K Kothari i/b SL Partners, for

Respondent Nos. 1 & 2.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

CORAM : N. J. JAMADAR, J.

RESERVED ON :24

th

MARCH 2026

PRONOUNCED ON :08

th

JUNE 2026

JUDGMENT:

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

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

2.This petition under Article 227 of the Constitution of

India, calls in question the legality, propriety and

correctness of an order dated 09

th

May, 2025 passed in

Notice of Motion No. 74/2021 whereby the learned Judge,

City Civil Court dismissed the Notice of Motion taken out

by the petitioners-original defendants to the counter-claim

to condone the delay of 12 years in �ling the written

statement to the counter-claim and additional counter-

SAINATH, PA 2/17

claim, and strike off the additional counter-claim �led by

the original defendants-Respondent Nos. 1 and 2.

3.The petitioners-original plaintiffs had instituted Suit

No.3381/2006 before this Court seeking,

inter alia, speci�c

performance of the contract to sell the suit property as

evidenced by the agreement dated 07

th

October, 2005. In

the said suit, the respondents/defendants �led written

statement and a counter-claim as well, being Counter-

Claim No. 01/2007, on 22

nd

January, 2007. In the wake of

enhancement of the pecuniary jurisdiction of the City Civil

Court, the Suit No. 3381/2006, came to be transferred to

the City Civil Court, Bombay and re-numbered as Short

Cause Suit No. 7401/2006.

4.In the year, 2016, the plaintiffs �led Chamber

Summons No. 342/2016 seeking amendment in the plaint.

By an order dated 28

th

September, 2016, the said chamber

summons was allowed. In response thereto, the defendants

�led additional written statement and additional counter-

claim, on 07

th

September, 2017. The defendants had not

however taken any steps to register Counter-Claim

SAINATH, PA 3/17

No.01/2007, before the City Civil Court, though the City

Civil Court had highlighted the said issue.

5.The plaintiffs claim, when the plaintiffs started

making preparation for adducing the evidence, it

transpired that, the erstwhile advocate of the plaintiffs had

not �led a written statement to the counter-claim �led by

the respondents, in the year 2007. The plaintiffs were

under a bona�de impression that, the erstwhile advocate of

the plaintiffs-defendants to the counter-claim, had �led

written statement to the counter-claim as well as

additional counter-claim. Therefore, the plaintiffs took out

the Notice of Motion No. 74/2021 seeking condonation of

delay in �ling the written statement to the Counter-Claim

No. 01/2007 and also to the additional counter-claim. The

plaintiffs also prayed for striking off the additional counter-

claim �led on behalf of the respondents.

6.By the impugned order, the learned Judge, City Civil

Court was persuaded to dismiss the Notice of Motion

observing that, there was no justi�able reason to condone

the delay of 12 years in �ling written statement to the

counter-claim. The only reason which was sought to be

SAINATH, PA 4/17

ascribed by the plaintiffs was that, they were under an

impression that, the advocate for the plaintiffs had �led the

written statement and on account of the inadvertence on

the part of the said Advocate and lack of communication,

written statement to the counter-claim could not be �led.

Such explanation, in the view of the learned Judge, City

Civil Court, did not commend itself for condonation of huge

delay of 12 years in �ling the written statement. Nor any

case was made out to strike off the additional counter-

claim �led in response to the amendment in the plaint.

7.I have heard Mr. Saif Dingankar, the learned Counsel

for the petitioners, and Mr. Tushar Gujjar, the learned

Counsel for Respondent Nos. 1 and 2. With the assistance

of the learned Counsel for the parties, I have also perused

the material on record.

8.Mr. Dingankar, the learned Counsel for the

petitioners/plaintiffs, urged that, the Counter-Claim No.

01/2007 �led by the defendants was not registered after

the suit came to be transferred to the City Civil Court,

Greater Bombay. The learned Judge, City Civil Court in the

roznama of the proceedings dated 03

rd

April, 2018, had

SAINATH, PA 5/17

clearly recorded that, though the Counter-Claim No.

01/2007 was �led before the High Court, yet, the same was

not registered and, therefore, the Defendant Nos. 1 and 2

were directed to register the counter-claim. However, the

Defendant Nos. 1 and 2 had failed to take necessary steps

to register the counter-claim. Thus, the learned Judge, City

Civil Court was in error in holding that, the plaintiffs had

not offered satisfactory explanation for the condonation of

delay in �ling the written statement to the counter-claim.

9.In opposition to this, Mr. Gujjar, the learned Counsel

for Respondent Nos. 1 and 2, would submit that, in the

af�davit in support of the Notice of Motion, no ground has

been made out, for condonation of such huge delay of 12

years in �ling the written statement to the counter-claim. It

was not the case of the plaintiffs that, the Counter-Claim

No. 01/2007 was not served on the plaintiffs. In any event,

the prayer for the condonation of delay in �ling the written

statement to the counter-claim and additional counter-

claim is irreconcilably inconsistent with the prayer to strike

off the additional counter-claim dated 22

nd

January 2007.

SAINATH, PA 6/17

10.The facts appear to be explicitly clear. On the aspect

of the �ling and service of written statement along with

counter-claim on 09

th

April, 2007, the letter dated 09

th

April, 2007 (Exh. C to the petition) clearly records that, the

then advocate for the plaintiffs had received the copies of

the written statement and counter-claim, on 09

th

April,

2007, itself. The counter-claim was registered as CC No.

01/2007 in Suit No. 3381/2006. The suit, on the own-

showing of the plaintiffs, came to be transferred to the City

Civil Court, in the year 2012. By the time, the suit thus

came to be transferred to the City Civil Court, a period of

more than 5 years had elapsed since the �ling of the

Counter-Claim No. 01/2007. It is not the case that, during

the said period, while the suit was subjudice before this

Court, any effort was made by the plaintiffs to �le written

statement to the Counter-Claim No. 01/2007.

11.On the legal premise, in view of the provisions

contained in Order VIII Rule 6-A (4), the counter-claim is

required to be treated as a plaint and governed by the rules

applicable to plaints. Rule 9 of Order VIII provides that,

there shall be no pleadings subsequent to the written

statement of a defendant other than by way of defence to

SAINATH, PA 7/17

set-off or counter-claim, except by the leave of the Court,

and upon such terms as the Court thinks �t. The counter-

claim is, in a sense, a cross-suit. The purpose of the

provision enabling �ling of a counter-claim is to avoid

multiplicity of judicial proceedings and save upon the

Court’s time as also to avoid the inconvenience to th e

parties by enabling claims and counter-claims, i.e. all

disputes between the same parties being decided in the

course of the same proceedings. [ Ramesh Chand

Ardawatiya Vs. Anil Panjwani

1

]

12.In the case of Ashok Kumar Kalra Vs. Wing Cdr.

Surendra Agnihotri & ors.

2

, a three-Judge Bench of the

Supreme Court

inter alia observed that, the counter-claim

shall be treated as a plaint and governed by the rules

applicable to plaints. Order VIII Rule 6-G states that, the

rules relating to a written statement by a defendant shall

apply to a written statement �led in answer to a counter-

claim. The time limit for �ling of the counter-claim, is not

explicitly provided by the legislature, rather only limitation

as to the accrual of the cause of action is provided. The

1 (2003) 7 SCC 350

2 (2020) 2 SCC 394

SAINATH, PA 8/17

right to �le a counter-claim in a suit is explicitly limited by

the embargo provided for the accrual of the cause of action

under Order VIII Rule 6-A. There cannot be any hard and

fast rule to say that in a particular time the counter-claim

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 counter-claim, 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. But,

however, the Court was of the considered opinion that, the

defendant cannot be permitted to �le counter-claim after

the issues are framed and after the suit has proceeded

substantially.

13.The three-Judge Bench thus postulated that Order

VIII rule 6-A of 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. That, however, does not give an absolute right to

the defendant to �le the counter-claim with a substantial

delay, even if the limitation period prescribed has not

SAINATH, PA 9/17

elapsed. The Court has to take into consideration the outer

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

issues are framed.

14.Reverting to the facts of the case at hand, in view of

the express provisions contained in Order VIII Rule 6-G, of

the Code, 1908, the rules relating to �ling a written

statement by a defendant govern the written statemen t

�led in answer to a counter-claim. It was, therefore,

incumbent upon the plaintiffs/defendants to the counter-

claim to �le written statement within the time stipulated

under the provisions of Order VIII Rule 1 of the Code,

1908. Undoubtedly, the proviso to Order VIII Rule 1 of the

Code, 1908 prescribing the outer limit of 90 days from the

date of service of summons for �ling the written statement,

has been construed to be directory and not mandatory .

However, it is incumbent upon the defendant to the

counter-claim to ascribe a suf�cient cause for not

preferring the written statement to the counter-claim

within the stipulated period. Lest, the very purpose of

prescribing the time limit for �ling the written statement,

be that to the suit or the counter-claim, would be

completely defeated.

SAINATH, PA 10/17

15. In the case at hand, the delay is of almost 12 years.

The learned Judge, City Civil Court, was justi�ed in

holding that, the only reason ascribed in the application

for condonation of 12 years delay in �ling the written

statement to the counter-claim was that, the erstwhile

advocate of the plaintiffs did not diligently advise the

plaintiffs to �le the written statement to the Counter-Claim

No. 01/2007. In substance, the blame was sought to b e

laid at the doorstep of the erstwhile advocate.

16.In the aforesaid context, the learned Judge, City Civil

Court extracted the following observations of the Supreme

Court in the case of Nitin Mahadeo Jawale & ors. Vs.

Bhaskar Mahadeo Mukte

3

:

“6.We have noticed over a period of time the

growing tendency on the part of the litigants in

throwing the entire blame on the head of the

advocate. Not only this, we have come across

cases where the concerned advocate has �led an

af�davit in favour of his client(s) saying that he

was unable to attend the proceedings due to some

personal reasons dif�culties thereby facilitating

the litigant to get the delay condoned.

3 2024 INSC 902

SAINATH, PA 11/17

7. Even if we assume for a moment that the

concerned lawyer was careless or negligent, this,

by itself, cannot be a ground to condone long and

inordinate delay as the litigant owes a duty to be

vigilant of his own rights and is expected to be

equally vigilant about the judicial proceedings

pending in the court initiated at his instance.

8. The litigant, therefore, should not be permitted

to throw the entire blame on the head of the

advocate and thereby disown him at any time and

seek relief.”

(emphasis supplied)

17.The afore-extracted observations are on all four with

the facts of the case at hand. The thrust of the submission

on behalf of the plaintiffs was that they were under an

impression that their erstwhile advocate had �led the

written statement to Counter-Claim No. 01/2007. That

explanation does not necessarily imply that, the plaintiffs

claimed that they had prepared the written statement and

entrusted the same to the erstwhile advocate for �ling the

written statement to the counter-claim. At any rate, the

explanation, even if taken at par, does not appeal to

human credulity, especially when the copy of the counter-

claim was served on the advocate for the plaintiffs on 09

th

April, 2007, itself.

SAINATH, PA 12/17

18.A pro�table reference in this context can be made to

a three-Judge Bench judgment of the Supreme Court in

the case of R. N. Jadi & Brothers & ors. Vs.

Subhashchandra

4

, wherein the approach of the Court in

the matter of condoning the delay in �ling the written

statement was expounded. The observations of Hon’ble

Justice

P. K. Balasubramanyan, in the supplementary

opinion, are instructive and, hence, extracted below :-

“

14. It is true that procedure is the handmaid

of justice. The court must always be anxious to do

justice and to prevent victories by way of technical

knock-outs. But how far that concept can be

stretched in the context of the amendments

brought to the Code and in the light of the

mischief that was sought to be averted is a

question that has to be seriously considered. I am

conscious that I was a party to the decision in

Kailash vs. Nankhu and others (2005 (4) SCC

480) which held that the provision was directory

and not mandatory But there could be situations

where even a procedural provision could be

construed as mandatory, no doubt retaining a

power in the court, in an appropriate case, to

exercise a jurisdiction to take out the rigor of that

provision or to mitigate genuine hardship. It was

in that context that in

Kailash vs. Nankhu and

others (supra)

it was stated that the extension of

4 (2007) 6 SCC 420

SAINATH, PA 13/17

time beyond 90 days was not automatic and that

the court, for reasons to be recorded, had to be

satis�ed that there was suf�cient justi�cation for

departing from the time limit �xed by the Code

and the power inhering in the court in terms of

Section 148 of the Code.

Kailash

(supra) is no

authority for receiving written statements, after

the expiry of the period permitted by law, in a

routine manner.

15. A dispensation that makes Order VIII

Rule 1 directory, leaving it to the courts to extend

the time indiscriminately would tend to defeat the

object sought to be achieved by the amendments

to the Code. It is, therefore, necessary to

emphasize that the grant of extension of time

beyond 30 days is not automatic, that it should be

exercised with caution and for adequate reasons

and that an extension of time beyond 90 days of

the service of summons must be granted only

based on a clear satisfaction of the justi�cation for

granting such extension, the court being

conscious of the fact that even the power of the

court for extension inhering in Section 148 of the

Code, has also been restricted by the legislature.

It would be proper to encourage the belief in

litigants that the imperative of Order VIII Rule 1

must be adhered to and that only in rare and

exceptional cases, the breach thereof will be

condoned. Such an approach by courts alone can

carry forward the legislative intent of avoiding

delays or at least in curtailing the delays in the

SAINATH, PA 14/17

disposal of suits �led in courts. The lament of

Lord Denning in Allen v. Sir Alfred McAlpine &

Sons [(1968) 1 All E.R. 543] that law's delays have

been intolerable and last so long as to turn justice

sour, is true of our legal system as well. Should

that state of affairs continue for all times?”

(emphasis supplied)

19.The Supreme Court has administered a caution in

terse terms that a dispensation that makes Order VIII Rule

1 directory leaving it to the Court to extend the time

indiscriminately, would tend to defeat the object sought to

be achieved by the amendments to the Code and it is

therefore necessary to emphasize that, the grant of

extension of time beyond 30 days is not automatic and that

an extension of time beyond 90 days of the service of

summons must be granted only based on clear satisfaction

of the justi�cation for granting such extension.

20.The aforesaid being the position in law, the learned

Judge, City Civil Court was well within his rights in

declining to condone the delay of 12 years in �ling the

written statement to the counter-claim.

21.The submission of Mr. Gujjar that, the prayer of the

plaintiffs to strike off the additional counter-claim and at

SAINATH, PA 15/17

the same time seek the relief of extension of time to �le

written statement to the additional counter-claim, are

incongruous, appears to carry substance. Evidently, the

Defendant Nos. 1 and 2 �led additional counter-claim in

response to the amendment in the plaint. As noted above,

no time limit for �ling of the counter-claim is explicitly

stipulated by the legislature. Rather the right to �le a

counter-claim hinges upon the accrual of the cause of

action to �le a counter-claim. If the Defendant Nos. 1 and 2

could demonstrate that, post amendment in the plaint in

addition to �ling the written statement, they were required

to �le additional counter-claim on account of the accrual of

the cause of action, there is nothing in law which

precludes the Defendant Nos. 1 and 2 from �ling an

additional counter-claim. Therefore, the prayer for

discarding of the additional counter-claim whilst seeking

condonation of delay in �ling the written statement, not

only to the counter-claim but also to the additional

counter-claim, appears wholly unsustainable.

22.Resultantly, on both the counts, the learned Judge,

City Civil Court, can be said to have exercised the

discretion in a judicious manner. There is neither any legal

SAINATH, PA 16/17

in�rmity nor material irregularity in exercise of discretion

by the City Civil Court. Resultantly, the petition deserves

to be dismissed.

23.Hence, the following order.

: : O R D E R : :

i] The Writ Petition stands dismissed.

ii] Rule discharged.

No costs.

[N. J. JAMADAR, J.]

SAINATH, PA 17/17