WP 395.2026 17th July, 2026 Sonam IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 395 OF 2026 1. Mr. Sudheer Prabhakar Desai, Aged about 85 years, Son of Late Mr. Prabhakar Shankar Desai, Married, Retired, Service, Presently residing at 501, Models Marine Vistas, Caranzalem, Panaji, Goa 403004. 2. Mrs. Sanyucta Sudheer Desai, Aged 81 years, Major in age, W/o Sudheer Desai, Married, Housewife, Presently residing at 501, Models Marine Vistas, Caranzalem, Panaji, Goa 403004. … Petitioners Versus 1. Mr. Anand Prabhakar Desai, About 76 years, S/o Mr. Prabhakar Shankar Desai, Service, Permanent Address at 6540, Deer Hallow Drive, San Jose, California, 95120, USA And presently Residing at 238, Petheche-wada, Corgao, Pernem, Goa, 403512. Mobile 9082633801 E-mail: AnandDesai1@gmail.com 2026:BHC-GOA:1394 WP 395.2026 17th July, 2026 2. Mrs. Mrudula Pramod Pandit, Aged 78 years, W/o Pramod Pandit, Married, Service, Presently residing at 12, Hillview Cooperative Society, Deonar Baug, Deonar Village Road, Deonar, Mumbai, Pin Code-400088. 3. Mr. Pramod Pandit, Aged 78 years, H/o Mrudula Pramod Pandit, Married, Service, Presently residing at 12, Hillview Cooperative Society, Deonar Baug, Deonar Village Road, Deonar, Mumbai, Pin Code 400088. …Respondents Mr. Joel Pinto, Advocate for the Petitioners. Mr. Neelesh Takkekar and Ms. Vidhi Volvoikar, Advocates for Respondent No. 1. Mr. Abhay Nachinolkar, Advocate for Respondent No. 2. CORAM : VALMIKI MENEZES, J. DATED : 17TH JULY, 2026 ORAL JUDGMENT: 1. Heard learned Advocates for the parties. 2. Rule. Rule is made returnable forthwith; at the request of and with the consent of learned Advocates for the parties, WP 395.2026 17th July, 2026 the matter is finally heard and disposed of. Learned Advocate Ms. Volvoilkar waives service on behalf of Respondent No. 1, and learned Advocate Mr. Nachinolkar waives service on behalf of Respondent No. 2. 3. By way of this Writ Petition under Article 227 of the Constitution of India, the Petitioner has impugned the order dated 12.09.2025 passed on Exhibit D-15, which is the application of the Petitioner filed under Order 23 Rule 3 of CPC. The Court has rejected the prayer for grant of leave to the Petitioner to institute/continue a counterclaim filed in another suit, but has granted the Petitioner leave to withdraw the counterclaim filed by him in Regular Civil Suit No. 26/2023. 4. The impugned order came to be passed in the following background facts: (a) Regular Civil Suit No. 26/2023 came to be filed by one of the three siblings named Anand, in the Court of Civil Judge Junior Division at Pernem, that suit was filed for a permanent injunction simplicitor on the premise that Anand was a co-owner of the suit properties along with his two other siblings, Sudhir and Mrudula. All these spouses of the three siblings WP 395.2026 17th July, 2026 are also included in the suit. In Regular Civil Suit No. 26/2023, the Petitioners were Defendant Nos. 1 and 2, who filed their written statement along with the counterclaim; in the counterclaim, the Petitioners sought a declaration that they were the sole owners of the suit properties by way of adverse possession/prescription since their possession was continuous and hostile to the other co-owners for more than 30 years. In short, the Petitioner claims an ouster of all other co-owners. (b) Whilst Regular Civil Suit No. 26/2023 was pending in the Pernem Court, Anand filed a second suit, which is Special Civil Suit No. 153/2023 in the Court of Civil Judge Senior Division at Mapusa, wherein he sought, as a primary relief, partition of the suit properties claiming 1/3rd share therein. It is Anand’s case in the second suit that each of the siblings has 1/3rd share and partition of the suit properties is required to be effected on that basis. In the second suit, the Petitioner Sudhir filed written statement along with the counterclaim in which, he once again sought a relief of declaration of the sole title to all the suit properties by way of ouster with other co-owners; in addition, he also sought other WP 395.2026 17th July, 2026 reliefs in the injunction and also sought a relief of enforcement of what he claims of in the MOU of the year 2008 and consequent thereto sought partition of the suit properties. (c) The Plaintiff in the first suit (Anand) withdrew Regular Civil Suit No. 26/2023 on 31.08.2024 and is now only pursuing Special Civil Suit No. 153/2023 for partition; however, Regular Civil Suit No. 26/2023 was being tried only to decide the counterclaim of the Petitioner Sudhir. (d) Whilst the counterclaim was pending adjudication in Regular Civil Suit No. 26/2023, the Petitioner filed an application styled as application for withdrawal of the counterclaim; what the Petitioner sought was for an order for allowing him to withdraw the counterclaim with leave to pursue the same relief in the counterclaim filed by him in Special Civil Suit No. 153/2023. It is this application that the Trial Court has partly allowed by rejecting the relief of leave to pursue the counterclaim in Special Civil Suit No. 153/2023; however, it has granted the Petitioner the right to withdraw his counterclaim. WP 395.2026 17th July, 2026 5. Considering the above mentioned facts and provisions of Order 23 Rule 3 CPC, under which the application at Exhibit D-28 had been filed, the Trial Court has fallen into error by allowing the application in part. The provisions of Order 23 Rule 3 empowers the Court to grant a party leave to file or pursue a remedy by way of filing a separate proceeding or pursuing a pending proceeding after withdrawing the proceeding before the Court. Order 23 Rule 3 does not permit the Court the discretion to allow the application in part, and it was either to grant the application in toto or dismiss the entire application. I am fortified in taking this view by the judgment rendered by this Court in Chandrakant Pandurang Shingade and ors. V/s Shri. Walchand Gulabchand Bora and ors.1, which has held as under: “7. Contention of the Applicant that though Plaintiff was permitted to withdraw the suit but in absence of express liberty to institute fresh suit, second suit was not maintainable, cannot be accepted. In as much as prayer for withdrawal and liberty to file fresh suit cannot be split up in two parts viz, withdrawal and liberty to file fresh suit. It has to be allowed as whole or rejected as whole. It is well settled that if an application is made for withdrawal of the suit with liberty to file suit, it is not open for the Court to grant only permission for withdrawal, without liberty to institute the proceedings, though it is open for the Court to reject such application, as held in the case of 1 2019 Supreme (Bom) 1168 WP 395.2026 17th July, 2026 Mario Shaw Vs. Martin Fernandez and Anr. reported in AIR 1996 Bombay 116.” 6. Obviously, the consequential order, which is also dated 12.09.2023, passed on the counterclaim of the Petitioner below Exhibit B-15, dismissing the counterclaim, shall stand quashed, and the counterclaim stands restored to the file of Regular Civil Suit No. 26/2023. 7. On the count alone, the impugned order must be quashed and set aside and is hereby quashed and set aside. Since the Trial Court has exercised its discretion to refuse grant of leave and that discretion appears to have been properly exercised, the correct course for the Trial Court would be to dismiss the application at Exhibit D-28 in its futile. Consequently, the application at Exhibit D-28 stands rejected as a whole. 8. Considering that the counterclaim of the Petitioner in Regular Civil Suit No. 26/2023 is now to be tried, and it is prior in point of time to the filing of Special Civil Suit No. 153/2023, which is a partition suit pending amongst the very same parties before the Civil Judge Senior Division at Mapusa, this may lead to conflicting Decrees and multiplicity of the proceedings. Under these circumstances, I deem it appropriate to exercise jurisdiction under Section 24 of the CPC to transfer Regular Civil Suit No. 26/2023 WP 395.2026 17th July, 2026 from the file of Civil Judge Junior Division at Pernem to the Court of the Civil Judge Senior Division at ‘B’ Court at Mapusa with a further direction that Regular Civil Suit No. 26/2023 after being renumbered by the Court of Civil Judge Senior Division at Mapusa shall be heard along with Special Civil Suit No. 153/2023/B; the Civil Court at Mapusa shall consolidate the trials in the two suits, since all parties are common to the suits and the Petitioner Sudhir shall first lead evidence and complete his evidence in Regular Civil Suit No. 26/2023, after which the Plaintiff in Special Civil Suit No. 153/2023, Anand, would follow and on completion of his evidence, Defendant No. 3 and 4 i.e. Mrudula and Pramod shall lead their evidence. It is open for the Civil Court at Mapusa to then pass a common Decree or separate Decrees, but rendered at the same time. 9. Rule is made absolute in the above terms. The petition stands disposed of. 10. The Registrar (Judicial) of this Court shall communicate this order to both the Court of the Civil Judge Senior Division ‘B’ Court Mapusa and the Court of the Civil Judge Junior Division, at Pernem, for necessary action. VALMIKI MENEZES, J.