1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 107 OF 2011 *** 1. Gurudatta S/o Gulabrao Waghmare, Age 44 years, Occ. Agriculture, R/o Mali Chinchora, Tq. Newasa, District Ahmednagar. 2. Devidas S/o Gulabrao Waghmare, Age 49 years, Occ. Service, R/o Kopargaon, Tq. Kopargaon, District Ahmednagar. ... PETITIONERS. [ORIG.DEFTS.1 & 2] Versus Rambhau S/o Bhikaji Sasane, Age 49 years, Occ. Agriculture, R/o Mali Chinchora, Tq. Newasa, District Ahmednagar. ... RESPONDENT [ORIG. PLAINTIFF]. *** Mr. V. D. Hon, Advocate for the Petitioners. Mr. V. D. Sapkal, Advocate for Respondent. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 23rd FEBRUARY, 2011. ORAL JUDGMENT: 1. In a suit for permanent injunction to protect his possession filed by Respondent/ plaintiff, written statement was filed in 2006 and, thereafer, plaintiff also tendered his affidavit of examination in chief on record. 2 After that affidavit was filed, in the month of October, 2010 the Petitioner/ defendant lodged counter claim in relation to very same property claiming declaration that they have become owner by adverse possession and also injunction to protect their possession. They contended that cause of action arose on 10th October, 2010. It was opposed by present Respondent/ plaintiff by pointing out that as affidavit of examination in chief is already accepted and written statement was filed much earlier, stage of filing counter claim was already over. By impugned order trial Court has refused to take counter claim on record. 2. Shri Hon has placed reliance upon the judgment of learned Single Judge of this Court in the case of "Teofilo Barreto V/s Sadashiva G. Nasnodkar and others" reported in 2007 (3) Mh.L.J. 850 and the judgment of Honourable Apex Court in the case of "Shri Jag Mohan Chawla and another V/s Dera Radha Swami Satsang and others" reported in JT 1996 (5) (S.C.) 428 to urge that view taken is not correct and as the cause raised vide counter claim is connected with suit and a fresh suit 3 by defendant for same purpose would have been within limitation, counter claim needed to be entertained. 3. Shri Sapkal, after giving above mentioned dates, and pointing out that affidavit of examination in chief was filed by Respondent/ plaintiff on 14th December, 2009, has stated that since then matter was pending for cross examination of Respondent/ plaintiff and about ten months thereafter effort has been made to file counter claim. He relies upon judgment of Honourable Apex Court in the case of "Rohit Singh and others V/s State of Bihar (Now State of Jharkhand)" reported in AIR 2007 SC 10 to urge that such counter claim is rightly not entertained. Judgment of learned Single Judge in the case of "Nagnath Jagannath Lomate and another V/s Narsing Sambha More and others" reported in 2009 B.C.I. 29, particularly paragraph 30 onwards and the judgment of learned Single Judge of Karnataka High Court in the case of "Smt. Parvathamma V/s K. R. Lokanath and others" reported in AIR 1991 Karnataka 283 (1) is also placed into service for very same purpose, by 4 him. 4. The provisions of law as contained in Order VIII Rule 6A C.P.Code stipulate that a counter claim can be filed before the defendant has delivered his defence or before the time limited for delivering his defence has expired. These words have been construed by me in judgment in the case of "Sheshrao S/o Bhaurao Sable V/s Ganesh S/o Mahadeorao Sable and others" reported in 2006 (6) Mh.L.J. 728" wherein after considering the Supreme Court judgment in the case of "Shanti Ra Das Dewanjee V/s Dinesh Chandra Day" reported in (1997) 8 SCC 174 a view as taken in the case of "Teofilo Barreto V/s Sadashiva G. Nasnodkar and others" (supra), has been reached. 5. The judgment of Honourable Apex Court in the case of "Rohit Singh and others V/s State of Bihar INow State of Jharkhand" (supra), particularly paragraph 15 on which Respondent has placed reliance shows that there written statement was filed, trial began and evidence of parties as also of intervenor was over. Evidence was closed and arguments on the side of intervenors had been concluded. The suit 5 was then dismissed as there was default on part of plaintiff to address arguments and it was restored. Honourable Apex Court has found that after suit was restored, at that stage, no counter claim could have been entertained. The facts clearly show that the stage of delivery of defence by defendant in the matter had already expired. In the case of "Smt. Parvathamma V/s K.R.Lokanath and others" (supra) the question about stage of delivery of defence has not been adjudicated upon. Same can be said even in relation to view of this Court in the case of "Nagnath Jagannath Lomate and another V/s Narsing Sambha More and others" (supra). 6. In view of the judgment delivered earlier by me in the case of Sheshrao S/o Bhaurao Sable V/s Ganesh S/o Mahadeorao Sable and others (supra) and the judgment of this Court in the case of "Teofilo Barreto V/s Sadashiva G. Nasnodkar and others" (supra) impugned order is unsustainable. Same is accordingly quashed and set aside. Here also fresh suit if required to be filed appears to be within limitation. I am not concluding this issue as 6 the dispute seems to be in existence since prior to filing of suit and filing of written statement. Whether counter claim is within limitation or not can be decided on merit by trial Court. The counter claim of Petitioner/ defendant is directed to be taken on record. The trial Court shall proceed further in accordance with law in the matter. If necessary, it shall permit Respondent/ plaintiff to file appropriate written statement and also affidavit of examination in chief, in accordance with law. Rule made absolute accordingly. No costs. Authentic copy is permitted to the parties as per usual procedure. [B.P.DHARMADHIKARI, J.] Dated:-23/02/2011. ans/107 7 WRIT PETITION NO.: 107 OF 2011 Date of decision: 23rd FEBRUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE