Allowed

M.Shailaja D/O. Late Sri.M.D.Vasu v. Y.Manoj S/O Y. Basavaraj

Karnataka HC24 Aug 2023WP/103810/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking quashment of an order rejecting a counterclaim application on limitation grounds. The court set aside the order, permitted the counterclaim, and directed the plaintiff to raise a limitation plea in their written statement.

What did the court decide?

Writ petition allowed; impugned order set aside; petitioner/defendant permitted to set up counterclaim; respondent/plaintiff at liberty to file written statement and raise limitation plea.

M.Shailaja D/O. Late Sri.M.D.Vasu Vs Y.Manoj S/O Y… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:9475 WP No. 103810 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 24^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 103810 OF 2021 (GM-CPC)

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BETWEEN:

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M. SHAILAJA D/O. LATE SRI M.D. VASU, AGED ABOUT 51 YEARS, R/AT: WARD NO. 11, NEAR VEERABHADHWARA TEMPLE, FLOWER STREET, BALLARI - 583101.

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…PETITIONER

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(BY SRI K. RAGHAVENDRA RAO AND SMT. V. VIDYA, ADVOCATES)

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Location: DHARWAD Date: 2023.08.29 16:22:39 -0700

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AND:

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Y. MANOJ S/O. Y. BASAVARAJ, AGED ABOUT 20 YEARS, R/AT: NEAR HLC COLONY, RAJ KUMAR ROAD, PATEL NAGAR, BALLARI-583101.

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M.D. AMRUTHA D/O. Y. BASAVARAJ, AGED ABOUT 18 YEARS, R/AT NEAR HLC COLONY, RAJ KUMAR ROAD, PATEL NAGAR, BALLARI-583101.

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2 - NC: 2023:KHC-D:9475 WP No. 103810 of 2021

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G.B. ROHIT S/O. M.D. JYOTHI, AGED ABOUT 12 YEARS,

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G.B. ROHAN S/O. M.D. JYOTHI, AGED ABOUT 9 YEARS,

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RESPONDENT NO. 3 AND 4 ARE REPRESENTED BY THEIR NATURAL GUARDIAN AND MOTHER M.D. JYOTHI, W/O MD. GHOUSE BASHA, AGED ABOUT 40 YEARS, R/AT: NEAR HLC COLONY, RAJ KUMAR ROAD, PATEL NAGAR, BALLARI-583101.

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…RESPONDENTS

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(BY SRI T. BASAVANAGOUD, ADVOCATE FOR R1 TO R4; R3 AND R4 ARE MINORS R/BY NATURAL GUARDIAN MOTHER R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING THE IMPUGNED ORDER PASSED BY THE LEARNED PRL. SENIOR CIVIL JUDGE AND CJM, BALLARI ON I.A.NO.11 IN O.S.NO.248/2016 DATED 09.09.2021 FOUND AT ANNEXURE-F, AND ALLOW THIS WRIT PETITION WITH COSTS AND GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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3 - NC: 2023:KHC-D:9475 WP No. 103810 of 2021

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ORDER

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Captioned petition is filed by the defendant feeling

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aggrieved by the order passed by the learned Judge on an application filed under section 151 of CPC seeking permission to file a counterclaim. Learned Judge has rejected the application on the ground that the counterclaim is barred by limitation.

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2. Facts leading to the case are as under:

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The respondent/plaintiff has instituted a suit seeking relief of declaration and injunction. The present petitioner filed an application seeking leave of the Court to set up a counterclaim. The cause of action to file counterclaim arose on 23.02.2018 when defendant filed I.A.No.4 and 5 to implead tenants and sought for deposit of rents before the Court on 01.09.2018. The question that requires consideration is as to whether the learned Judge erred in rejecting the counterclaim on the ground that the same is barred by limitation. On examining the material on record, I am not inclined to concur with the reasons assigned by the learned Judge. It is only in those cases where the evidence is

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4 - NC: 2023:KHC-D:9475 WP No. 103810 of 2021

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clear and the Court is of the view that suit or counterclaim is barred ex-facie, the Court can have recourse to Section 3 of the Limitation Act. In the present case on hand, the material on record is not tangible where a party can be non-suited without permitting him to substantiate his case by leading evidence.

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The counterclaim is set up before settlement of issues. Therefore, I am of the view that the law laid down by the Hon'ble Apex Court in the case of Mahesh Govindji Trivedi vs. Bakul Maganlal Vyas and others¹ is squarely applicable to the present case on hand. By non-suiting the defendant on the ground of limitation may lead to miscarriage of justice. When valuable rights in immovable properties are involved, the Court should be cautious in exercising the power conferred on the Court under Section 3 of the Limitation Act. Therefore, I am of the view that the order under challenge warrants interference. If petitionerdefendant is denied an opportunity to set up a counterclaim, I am more than satisfied that it may cause serious prejudice

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1 2022 LiveLaw (SC) 836

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NC: 2023:KHC-D:9475 WP No. 103810 of 2021

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to the rights of the defendants. Therefore, to meet the ends

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of justice, keeping open the question of limitation, I pass the following:

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ORDER

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