IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 626 OF 2007 M/S ASIATIC ESTATE DEVELOPMENTS REPRESENTED BY MANAGING PARTNER SAVIO DE ROACHA LOBO ... Petitioner Versus MRS. PHILOMENA D'SOUZA AND 10 ORS., ... Respondents Ms. Susan Linhares,Adv. for the petitioner. Mr.Nigel Da Costa, Adv. for the respondent. Coram:- C. L. PANGARKAR, J. Date:- 29th January, 2009 P.C. 1. On 7/12/2007, this writ petitiion has been filed challenging the three orders passed by the Civil Judge (Sr.Dn.) allowing amendment of the plaint vide Exh.145 and allowing the applications Exhs.152 and 153, which relate to the exclusion of counter claim and striking out pleadings. The petitioner is a defendant. 2. The respondent instituted a suit for specific performance of the contract. The defendant resisted the suit by filing written statement. Thereafter, the plaintiff moved an application for amendment of the plaint. The plaintiff sought an amendment to the effect that he was always ready and willing to perform his part of the contract. After this amendment was allowed, the defendant filed an additional written statement and also along with that written statement filed a counter claim. Since an additional written statement was filed by the defendant and the counter claim was raised, the plaintiff moved two applications namely Exh.152 and 153 contending that the counter claim should not have been entertained by the court and it will embarrass and delay the trial and it does not relate to controversy in the dispute and the said counter claim can, in fact, be decided by a separate suit. His applications were resisted by the defendant. In the second application, the plaintiff had contended that the defendant had added in the additional written statement certain more grounds which the defendant could not have raised. It is contended that the defendant could have at the most denied the allegations made by the plaintiff in the amendment application. 4. The learned judge of the trial court found that in the additional written statement, the defendant has raised additional pleadings which he could not have raised besides only the denial of the claim of the plaintiff in the amended plaint. It was also found that those pleadings would embarrass the trial. Therefore ordered to those pleadings to be struck off. 5. As far as the counter claim is concerned, the learned judge found that the cause of action for filing the counter claim has arisen after the defence was delivered and therefore, it could not be the subject matter of the counter claim. 6. As far as allowing of the application Exh.145 is concerned, the learned counsel for the petitioner submits that she does not seriously challenge that order and court may confirm that order. I, therefore, need not consider the validity and legality of the said order at all. 7. The learned counsel for the petitioner submits that she may be allowed to withdraw the counter claim and be allowed to file a fresh suit. The court has already excluded the counter claim and has, therefore, not taken cognizance of the said counter claim. There is, therefore, no question of defendant/ petitioner's being allowed to withdraw the said counter claim. Since the court has not taken cognizance of the counter claim and excluded it, the defendant is at liberty to, infact, institute a fresh. 8. The third order, which is under challenge, is in respect of striking out the pleadings. It seems that the learned judge has struck off the pleadings relying on the provisions of order 6 rule 16 of the C.P.C. He finds that if such pleadings are allowed on record, it ill tend to prejudice, embarrass or delay the fair trial of the suit. Although the learned judge says so, it appears from the order that he does not give any reason as to how it could be said that it will prejudice, embasrass or delay the trial. If at all any pleadilngs are made by the defendant in respect of the counter claim, they are deemed to have been excluded because of the fact that the counter claim has been excluded by the trial court. As far as other pleadings are concerned, it is brought to my notice that the defendant merely submits that there has been amalgamation of the certain plots and nothing more is added in the said paragraphs, which have been struck down by the court. 9. After having heard the learned counsel for the petitioner and the respondent, I find that even if such pleadings are remain on record, they are not likely to embarrass or delay the trial. 10. In the cirucmstances, that part of the order i.e. order on Exh.153 is set aside. In view of the fact that the order on Exh.153 is set aside, parties are at liberty to lead additional evidence if at all they so choose. The trial court shall therafter frame additiional issues if at all they are so necessary. The parties may lead additional evidence before the trial court and the trial court should decide the matter finally within period of six months. The petition stands disposed of accordingly. C. L. PANGARKAR, J. PZC