1 14 wp 6016.10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srk WRIT PETITION NO.6016 OF 2010 Vaishali Vasantrao Inamdar ..Petitioner. v/s. Subhash Balasaheb Barse & Anr. ..Respondents. .... Ms. Leena Patil for the Petitioner. .... CORAM : J.H.BHATIA, J. DATE : 31ST AUGUST, 2010. P.C. 1 Heard the learned counsel for the Petitioner. 2 Respondent no.1 filed a Regular Civil Suit No.8 of 2008 in the court of Civil Judge Junior Division, Manmad against the present Petitioner for declaration of his title and perpetual injunction restraining the present Petitioner from interfering in his possession over the suit property. The present Petitioner, as a 2 14 wp 6016.10.doc Defendant in that suit, filed his written statement on 23.04.2008 and thereafter on 12.02.2009 the present Petitioner filed an Application for amendment in the written statement so as to file counter-claim for recovery of possession of a portion of the land on the ground that during the measurement pending the suit it was found that the Plaintiff/Respondent no.1 had encroached upon the property of the Defendant. The trial court rejected it as not permissible in view of the Order 8, Rule 6-A of the Civil Procedure Code. 3 Order 8, Rule 6-A of the Civil Procedure Code clearly provides that the Defendant may make a counter-claim against the Plaintiff of any right or claim in respect of a cause of action accrued to the Defendant against the Plaintiff, either before or after the filing of the suit but before the Defendant has delivered his defence or before the time limited for delivering the defence has expired. In the present case, it is clear that the written statement was filed on 23.04.2008. The counter-claim could have been filed either before filing the written statement or alongwith written statement. The counter-claim could not be filed later on. From the contents of the amendment application moved by the 3 14 wp 6016.10.doc Petitioner, it is clear that the cause of action to make the claim against the Plaintiff had arisen after the suit was filed and long after the written statement was filed, because of the revelation made during the measurement of the property. In view of the circumstances, the Defendant could have filed independent suit for recovery of that property but in view of the provisions of Order 8, Rule 6-A of the Civil Procedure Code, a counter-claim could not be filed long after the written statement was filed. In view of this, I find no illegality or irregularity in the impugned order. 4 Therefore, Petition stands dismissed. [ J.H.BHATIA, J. ]