1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 8133 OF 2009 Shri Dhondi Dattu Bhutal & Anr. .. Petitioners Vs Shri Jawaharlal Annaso Rote & Ors. .. Respondents -- Shri S.S. Patwardhan i/by Shri S.A. Rajeshirke for the Petitioners. Shri S.S. Shah for Respondent Nos.1 to 3, 5 and 6. -- CORAM :A.S.OKA,J. DATE : 22ND JANUARY, 2010 P.C. . Heard learned counsel appearing for the Petitioners. The fourth Respondent has already died and her name has been deleted from the record of the suit. Rest of the Respondents are represented by Shri Shah, Advocate. 2. The challenge in this Petition under Article 227 of the Constitution of India is to the order dated 21st July, 2009 passed by the trial Court by which an application made by the Petitioners ( who are the Plaintiffs ) at Exhibit-95 has been rejected. 3. The sixth Respondent (6th Defendant ) filed a counter-claim. The Application at Exhibit -95 was made by the Petitioners for pointing out that the counter claim was not maintainable and the same should be excluded or rejected. By the impugned order, the said application has been rejected. While passing the impugned order, the learned trial Judge observed that an issue as regards the bar of limitation as far as counter-claim is concerned, is 2 already framed. 4. Learned counsel appearing for the Petitioners submitted that the counter-claim was ex facie not maintainable, and therefore, prayer for excluding the counter-claim ought to have been granted. He submitted that the trial Court has completely misdirected itself by not considering the merits of the Application. 5. I have considered the submissions. It appears that the Written Statement to the counter-claim has already been filed. Thereafter, the original plaintiff-petitioner has filed an affidavit in lieu of examination-in- chief to the counter-claim. An issue regarding bar of limitation of counter- claim has already been framed as observed by the trial Court. The contention which is raised by the Petitioners in the Application at Exhibit-95 has been raised in the Written Statement to the counter-claim. In any case, the contention raised by the Petitioners about the maintainability of the counter- claim will have to be decided by the trial Court at appropriate stage. As the original plaintiff-petitioner has already filed an affidavit in lieu of the examination-in-chief in support of the counter-claim, at this stage, the application made by the Petitioners could not have been entertained on merits and the same ought to have been disposed of by keeping the issue of maintainability open which can be decided at the time of final hearing of the counter-claim. No purpose will be served by delaying disposal of the suit and the counter-claim as the same have been reached the stage of hearing. 3 6. Hence I pass the following order:- (a) The impugned order is quashed and set aside. (b) The contentions raised by the Petitioners in the Application at Exhibit – 95 are kept open. If the trial Court has not framed any issue as regards the maintainability of the counter-claim, the same shall be framed by the trial Court which shall be decided along with the other issues. (c) The Application at Exhibit-95 stands disposed of by keeping all the contentions of the parties open. JUDGE