1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5481 OF 2009 Varsha Vijay Rajguru .. Petitioner versus Nathoba Rambhau Chondhe .. Respondent Mr.Venkatesh Shastry for the petitioner. Mr.Raghwan i/by Thodur Law Associates for respondent No.1. Mr.S.M.Gorwadkar for respondent Nos.2a and 2b. Mr.N.C.Walimbe for respondent No.7. CORAM : A.S.OKA, J. DATE : 23rd February 2010. P.C.: . Heard learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. The petitioner who is the original defendant No.1f made an application before the trial Court for taking Counter- claim on record. By the impugned judgment and order, the application made by the petitioner has been rejected by the trial Court. 2. The learned counsel appearing for the petitioner submitted that the application for taking Counter-claim on record was filed at a stage when affidavit in lieu of examination-in-chief of the original plaintiff was filed on record. He invited my attention to the proposed Counter-claim. He submitted that all the petitioner wants to say is that there are certain other joint family properties which ought to have been made part of the suit properties. He pointed out that there are 2 large number of parties to the suit and it will be unjust to drive the petitioner to file a fresh suit. He, therefore, submitted that the impugned order deserves to be quashed and set aside. 3. The suit is of the year 1991. The written statement was filed by the petitioner in the year 2003. The present application was made in the year 2009 when the suit was at the stage of cross-examination of the original plaintiff. Therefore, the trial Court has passed a discretionary order of rejecting prayer of the petitioner. The rejection of the prayer will not preclude the petitioner from filing a separate suit as held by the Apex Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani [(2003) 7 Supreme Court Cases 350]. If the case of the petitioner is that certain properties which ought to have been included in the list of suit properties have not been included, the petitioner can always apply to the trial Court seeking permission to amend the written statement for raising a contention on the basis of non-inclusion of the properties. If such application is made, the trial Court is bound to consider the same on merits in as much as proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908 will not apply to the present case as the suit is of the year 1991. Such a prayer will have to be liberally considered by the trial Court. Subject to what is observed above, no case for interference is made out. Writ petition is rejected. (A.S.OKA,J)