The Bombay High Court has reaffirmed the principle that litigants must remain vigilant about judicial proceedings and cannot shift blame to advocates for delays. In this case, the Court dismissed a writ petition seeking condonation of a 12-year delay in filing a written statement to a counter-claim, holding that such inordinate delays defeat the object of procedural timelines under the Code of Civil Procedure, 1908.
Background & Facts
The Dispute
The petitioners, Minesh Anup Kumar Dhakan and Nitesh Anup Kumar Dhakan, had instituted Suit No. 3381/2006 before the Bombay High Court seeking specific performance of an agreement dated 07th October, 2005 for the sale of a property. The respondents, Suresh Issardas Nichani, Kavita Suresh Nichani, Shailesh Vora, and Shree Giriraj Co-operative Housing Society Ltd., filed a written statement and counter-claim (Counter-Claim No. 01/2007) on 22nd January, 2007. Following the enhancement of the pecuniary jurisdiction of the City Civil Court, the suit was transferred and re-numbered as Short Cause Suit No. 7401/2006.
Key Facts
- The petitioners entered into an agreement for the sale of property on 07th October, 2005
- The respondents filed a counter-claim (CC No. 01/2007) on 22nd January, 2007
- The suit was transferred to the City Civil Court in 2012 and re-numbered as Short Cause Suit No. 7401/2006
- The petitioners claimed they were under the impression that their erstwhile advocate had filed a written statement to the counter-claim
- A letter dated 09th April, 2007 (Exh. C) confirmed that the advocate for the petitioners had received copies of the written statement and counter-claim on the same date
- The petitioners filed Chamber Summons No. 342/2016 in 2016 for amendment of the plaint, which was allowed on 28th September, 2016
- The respondents filed an additional counter-claim on 07th September, 2017 in response to the amendment
Procedural History
- 22nd January, 2007: Respondents filed Counter-Claim No. 01/2007
- 09th April, 2007: Petitioners' advocate received copies of the counter-claim
- 2012: Suit transferred to City Civil Court and re-numbered as Short Cause Suit No. 7401/2006
- 28th September, 2016: Chamber Summons No. 342/2016 allowed for amendment of plaint
- 07th September, 2017: Respondents filed additional counter-claim
- 2021: Petitioners filed Notice of Motion No. 74/2021 seeking condonation of delay in filing written statement to the counter-claim and additional counter-claim, and to strike off the additional counter-claim
- 09th May, 2025: City Civil Court dismissed the Notice of Motion, holding no justifiable reason for condoning the 12-year delay
- 2025: Petitioners filed Writ Petition No. 17428 of 2025 before the Bombay High Court
Relief Sought
The petitioners sought:
- Condonation of the 12-year delay in filing the written statement to Counter-Claim No. 01/2007 and the additional counter-claim
- Striking off the additional counter-claim filed by the respondents
The Legal Issue
The central question was whether the City Civil Court erred in dismissing the petitioners' application for condonation of a 12-year delay in filing the written statement to the counter-claim, and whether the explanation offered by the petitioners - blaming their erstwhile advocate - was sufficient to justify such condonation under Order VIII Rule 1 of the Code of Civil Procedure, 1908.
Arguments Presented
For the Petitioners
Mr. Saif Dingankar, counsel for the petitioners, argued:
- The Counter-Claim No. 01/2007 was never registered after the suit was transferred to the City Civil Court
- The City Civil Court had recorded in its roznama dated 03rd April, 2018 that the counter-claim was not registered, and the respondents failed to take steps to register it
- The City Civil Court erred in holding that the petitioners failed to offer a satisfactory explanation for the delay
For the Respondents
Mr. Tushar Gujjar, counsel for Respondent Nos. 1 and 2, contended:
- The petitioners failed to make out any ground for condonation of the 12-year delay in their affidavit
- The petitioners were served with the counter-claim on 09th April, 2007, as evidenced by Exhibit C
- The prayers for condonation of delay and striking off the additional counter-claim were irreconcilably inconsistent
The Court's Analysis
The Court examined the provisions of Order VIII Rule 1 and Rule 6-A(4) of the Code of Civil Procedure, 1908, which treat a counter-claim as a plaint and require the defendant to file a written statement within the stipulated time. The Court relied on the Supreme Court's observations in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri & ors. ((2020) 2 SCC 394), which held that while Order VIII Rule 6-A does not impose a strict time limit for filing a counter-claim, the court must exercise discretion judiciously to avoid prejudice to the opposite party or undue delay in proceedings.
"The purpose of the provision enabling filing 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 the parties by enabling claims and counter-claims, i.e. all disputes between the same parties being decided in the course of the same proceedings."
The Court further cited Ramesh Chand Ardawatiya v. Anil Panjwani ((2003) 7 SCC 350), which emphasized that a counter-claim is akin to a cross-suit and must be governed by the rules applicable to plaints.
On the issue of condonation of delay, the Court referred to the Supreme Court's decision in Nitin Mahadeo Jawale & ors. v. Bhaskar Mahadeo Mukte (2024 INSC 902), which held that litigants cannot shift blame entirely to their advocates for delays. The Court observed:
"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. 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."
The Court also relied on R. N. Jadi & Brothers & ors. v. Subhashchandra ((2007) 6 SCC 420), which cautioned against indiscriminate extension of time for filing written statements, as it defeats the object of the Code of Civil Procedure. The Supreme Court in that case emphasized that extensions beyond 90 days must be granted only upon clear satisfaction of justification, and litigants must be encouraged to adhere to procedural timelines.
Applying these principles, the Court held that the petitioners' explanation - that they were under the impression their advocate had filed the written statement - was insufficient to justify condoning a 12-year delay. The Court noted that the counter-claim was served on the petitioners' advocate on 09th April, 2007, and no effort was made to file a written statement during the 5-year period the suit was pending before the High Court.
The Court also rejected the petitioners' prayer to strike off the additional counter-claim, holding that the respondents were entitled to file it in response to the amendment in the plaint, as there was no legal bar to doing so.
The Verdict
The Bombay High Court dismissed the Writ Petition No. 17428 of 2025 and discharged the rule. The Court upheld the City Civil Court's order dated 09th May, 2025, which declined to condone the 12-year delay in filing the written statement to the counter-claim and refused to strike off the additional counter-claim. No costs were awarded.
What This Means For Similar Cases
Litigants Must Be Vigilant About Procedural Timelines
- The judgment reaffirms that litigants cannot shift blame to their advocates for procedural lapses. They must actively monitor judicial proceedings and ensure compliance with timelines
- Courts are unlikely to condone inordinate delays (e.g., 12 years) unless extraordinary circumstances are demonstrated
Counter-Claims Are Governed by Rules Applicable to Plaints
- Order VIII Rule 6-G mandates that the rules for filing a written statement to a plaint apply equally to a written statement to a counter-claim
- While Order VIII Rule 6-A does not impose a strict time limit for filing counter-claims, courts will scrutinize delays to prevent prejudice to the opposite party
Courts Will Not Tolerate Inconsistent Pleas
- Litigants cannot seek condonation of delay in filing a written statement while simultaneously praying for striking off the counter-claim. Such inconsistent pleas are likely to be rejected
