1 wp8540.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 8540 of 2010 Sau. Shailja Rajendra Gadekar ... Petitioner v/s. Atul Sohanlal Sharma & ors. ... Respondents Ms. Gunjan P. Shah for the petitioner. Mr. M.M. Sathaye for respondents 1-5. CORAM:- B.R. GAVAI, J DATED :- MARCH 16, 2011. P.C. By way of present petition, the petitioner challenges the order dated 27th July, 2010 vide which the application filed by the present petitioner for amendment to the counter claim came to be rejected. 2. The respondents 1-5 have filed a Regular Civil Suit No. 221/2002 for specific performance. The said suit is resisted by the present petitioner- defendant no. 5 by filing a written-statement. A counter claim is also raised that the agreement for sale dated 11th December, 1990 be declared as null and 2 wp8540.10.sxw void. Subsequently, an application for amendment came to be filed by the respondent-plaintiff for impleading respondent no. 10 as defendant no.6. The amendment incorporated was to include defendant no. 6 alongwith other defendants. 3. Thereafter, an application for amendment to the counter claim came to be filed by the present petitioner so as to incorporate and challenge the sale deed dated 29th March, 2007 executed by defendants 1-4 in favour of defendant no. 6. The said application is rejected. Hence, the present petition. 4. Smt. Gunjan Shah learned counsel appearing on behalf of petitioner submits that since the amendment to the counter claim is only consequent to the amendment in plaint, the learned trial Court ought to have allowed the same. She submit that by way of amendment the plaintiffs have challenged the sale deed dated 29th March, 2007 and as such the learned trial Court ought to have allowed the petitioner to amend the counter claim. 5. Shri Sathe, the learned Counsel appearing on behalf of respondents on the contrary submits that by way of amendment the plaintiffs have only 3 wp8540.10.sxw included defendant no. 6 and have not incorporated the challenge to sale deed dated 29th March, 2007. He further submit that in view of Order 8 Rule 6 A of the CPC, since the cause of action which is claimed by way of amendment to the counter claim is after the delivery of the defence by the defendant no.5, the same is not permissible in law. 6. Admittedly, the written-statement is filed on 19th December, 2006. The cause of action which is sought to be pleaded in the counter claim is admittedly regarding sale deed dated 29th March, 2007. The legal position is no more res integra. The Apex Court in the cantena of decisions has held that though the counter claim could be filed even at the stage subsequent to filing of written-statement, it cannot be filed for a cause of action which arises after the defendant has delivered his defence. The reference to this respect could be made to the Judgment of the Apex Court in the case Bollepanda P. Poonacha & anr. v/s. K.M. Madapa reported in AIR 2008 SC 2003, Rohit Singh Vs. State of Bihar reported in 2006 AIR SCW 5385 and in the case of Mahendra Kumar Vs. State of Madhya Pradesh reported in AIR 1987 SC 1395. 4 wp8540.10.sxw 7. In that view of the matter, no error could be noticed with the approach adopted by the learned trial Court. Rejected. (B.R. GAVAI, J)