ALANKAR PADAJI MHATRE AND ORS v. NAMDEO NARAYAN NAIK AND ORS
Counterclaim Against Co-Defendant: High Court Clarifies Plaintiff's Right to Abandon Suit and Limits on Counterclaims Under CPC Order VIII Rule 6-A.
Court: Bombay High Court
Citation: 2026:BHC-AS:268
Decision Date: 06-01-2026
List of Laws
Civil Procedure Code, 1908; Order XXIII Rule 1(1), CPC; Order VIII Rule 6-A, CPC
- Facts: The plaintiffs filed a suit for partition and injunction regarding certain properties, including a specific plot. Defendant Nos. 1 to 4 initially claimed to have transferred the suit plot to Defendant No. 5. The plaintiffs and Defendant No. 5 reached an amicable settlement, leading the plaintiffs to seek deletion of Defendant No. 5 and the suit plot from the suit. Defendant Nos. 1 to 4 then sought to amend their written statement to include a counterclaim against both the plaintiffs and Defendant No. 5, alleging default in payment of consideration by Defendant No. 5.
- Procedural Posture: The plaintiffs filed writ petitions challenging the Civil Judge's order that rejected their application to amend the plaint (to delete Defendant No. 5 and the suit plot) and allowed Defendant Nos. 1 to 4 to amend their written statement to include a counterclaim.
- Issue: Did the Trial Court err in rejecting the plaintiffs' application to amend the plaint to abandon the suit against Defendant No. 5 and the suit plot, and in allowing Defendant Nos. 1 to 4 to introduce a counterclaim against both the plaintiffs and Defendant No. 5? Specifically, can a defendant raise a counterclaim primarily against a co-defendant?
- Holding: Yes, the Trial Court erred. The High Court quashed the Trial Court's order, allowed the plaintiffs' amendment to delete Defendant No. 5 and the suit plot, and rejected Defendant Nos. 1 to 4's application to include the counterclaim.
- Reasoning: The High Court relied on Order XXIII Rule 1(1) of the Civil Procedure Code, 1908, emphasizing a plaintiff's absolute right to abandon a suit or part of a claim. The Court cited K.S. Bhoopathy & Ors. Vs. Kokila & Ors. and Anurag Mittal Vs. Shaily Mishra Mittal, highlighting the distinction between absolute withdrawal and withdrawal with the court's permission. The court also referred to Order VIII Rule 6-A of the Code and cited Rahul Singh & Ors. Vs. State of Bihar & Ors. and Rajul Manoj Shah @ Rajeshwari Rasiklal Sheth Vs. Kiranbhai Shakrabhai Patel & Anr., asserting that a counterclaim must be directed against the plaintiff, not solely against a co-defendant. The Court found that the proposed counterclaim was essentially aimed at Defendant No. 5 and was a subterfuge to circumvent the rule against counterclaims against co-defendants. The court stated, "The counter-claim against the plaintiff, thus, appears to be a subterfuge to sustain the counter-claim against the Defendant No. 5, which would not have been otherwise tenable."
🔒 For Members Only