ANNA PARISA CHOUGULE SINCE DECEASED BY HIS HERIS & LEGAL REPRESENTATIVES Vs. SULOCHNA NABHIRAJ CHOUGULE

JUDGEMENT

(1.) Heard learned Counsel for the Appellants. The Respondent is absent despite notice. Even on the last occasion, i.e. on 12 Jan. 2017, none appeared for the Respondent. The appeal is, accordingly, heard ex-parte.

(2.) The Second Appeal raises substantial questions of law concerning (a) limitation applicable to a counter-claim and (b) interpretation of Sec. 22 of the Limitation Act, which provides for limitation in the case of a continuing cause of action.

(3.) The Appellant is the Original Plaintiff, who filed the present suit for damages against the Respondent (Original Defendant). The case of the Appellant in the suit is that there was a partition of the joint family property between the Plaintiff and each of the brothers, as also the Defendant (wife of Nabhiraj Parisa Chougule), who had power looms running in the property. The partition deed provided that the power looms were to be possessed and used by individual parties, in whose names the power looms stand and that the power looms of the Respondent were to be shifted by the Appellant to the shed of Nabhiraj in working condition. It is the Appellant's case that it was the Respondent, who was to shift her power looms and that the Appellant was willing to give her the same but that the Defendant did not have any place where the power looms could be shifted. It is submitted that the power looms had to be kept in the shed, which came to the Appellant's share. The Appellant, in the premises, filed the present suit claiming recovery of rent and damages, along with future mesne profits from the Respondent. The Respondent, for her part, filed a counter-claim in the suit, claiming a mandatory injunction directing the Appellant to install power looms in working condition in the shed of Nabhiraj. Both Trial Court and the first Appellate Court came to the conclusion that the Appellant had no case for damages. Both courts below decreed the Respondent's counter-claim on the ground that it was the Appellant, who was bound to shift the power looms of the Respondent to the shed of Nabhiraj in working condition and that he had failed to do so.