( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 737 OF 2008 Jairam s/o Dhumal Chandnani APPELLANT VERSUS Ramrao s/o Sadashiv Kharat RESPONDENT ..... Mr. S.P. Deshmukh, advocate holding for Mrs. C.S. Deshmukh, advocate for the appellant. Mr. A.R. Rathod, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 24th November, 2009] PER COURT : 1. This appeal is directed against judgement rendered by the first Appellate Court in an appeal (R.C.A. No. 77/2004) whereby the appeal came to be dismissed and the judgement and decree rendered by the trial Court in suit for perpetual injunction (R.C.S. No. 568/2002) was confirmed. ( 2 ) 2. It is not necessary to elaborately set out the rival pleadings. The dispute relates to shop premises which are in possession of the respondent as a tenant. There is no dispute about the fact that the appellant is owner of the shop premises. 3. The respondent filed suit for perpetual injunction restraining the appellant from causing obstruction in his lawful possession of the suit shop. It was the case of the respondent that he had paid deposit (------) of Rs. 1,15,000/- when the shop was leased out to him on 30th June, 1996. It was further averred that the appellant (defendant) had issued a notice dated 08-10-2002 seeking recovery of rent arrears though he was not in arrears. It was averred that the appellant was trying to interfere with the lawful possession of the respondent and, therefore, protection by way of injunction decree was called for. 4. The defendant (appellant) resisted the suit alleging that the plaintiff (respondent) was in arrears ( 3 ) of rent. He contended that the rent agreed was Rs. 1200/- p.m. and not Rs. 575/- p.m. as claimed by the respondent (plaintiff). It was alleged further that the suit shop was not being used by the respondent (plaintiff) and he had secured alternate accommodation. The appellant filed counter claim and sought vacant possession of the suit shop from the respondent (plaintiff) alongwith Rs. 13,200/- being damages for unlawful occupation of the suit shop. 5. The trial Court decreed the suit for perpetual injunction. The decree is maintained by the first Appellate Court. 6. Heard learned counsel for the parties. 7. As a matter of fact, though the trial Court held that the counter claim was maintainable, yet, no issue was framed in the context of entitlement of the appellant to seek vacant possession of the suit shop and to claim the damages. So also, no reason has been recorded by the trial Court as to why the counter claim ( 4 ) has been completely discarded. The following substantial questions of law were formulated while admitting the appeal. (i) Whether, in the facts and circumstances of the present case, both the Courts below committed patent error while discarding the counter claim simply on the ground that it is imaginary and unsustainable, without framing any issue in this behalf ? (ii) Whether the counter claim of the appellant is maintainable and ought to have been considered alongwith the suit ? If yes, whether it is expedient and in the interest of justice to remand the matter to the trial Court for afresh consideration of the counter claim ? 8. Though the plaintiff’s suit was only for injunction as such, yet, the counter claim for recovery for possession could be considered in view of Order-VIII Rule 6 of the Civil Procedure Code. The respondent had ( 5 ) filed written statement (Exh-17) to the counter claim. However, no issue was framed. It is well settled that the counter claim is like a separate suit though both the claims are required to be tried together. It is also well settled that even if the suit is dismissed, yet, the counter claim cannot be dismissed only for the reason of absentia of the suit and it has to be tried as a separate suit. On perusal of the judgements of the trial Court and the first Appellate Court, it is manifest that no issue was framed in the context of lawful termination of the tenancy of the respondent, validity of the termination notice, the plea regarding alternate accommodation secured by the respondent and the plea regarding his non-user of the suit shop for a considerable period. 9. There appears basic infirmity in the trial procedure adopted by the trial Court and also ignorance of the first Appellate Court to notice such a fault. The landlord cannot be perpetually restrained from causing interference in the possession of the tenant. The decree ought to be properly worded. It was ( 6 ) necessary for the trial Court to make the injunction decree operative till the lawful ejectment. 10. Considering the deficiencies found in the trial procedure, I have no hesitation in holding that the impugned judgements are unsustainable. The appeal is partly allowed. The impugned judgements are set aside. The matter is remanded to the trial Court by restoring the suit (R.C.S. No. 568/2002) and with direction that necessary issues regarding the counter claim put forth by the appellant shall be framed. Both the parties shall be given sufficient opportunity to lead their evidence in the context of the issues which will be framed after the remand. The trial Court shall thereafter decide the suit afresh alongwith the counter claim. The trial Court shall expedite the final hearing of the suit and the counter claim and shall make endeavour to dispose of the same within period of eight (8) months as far as possible. The cost shall be included in the costs of the cause. The parties are directed to appear before the learned Civil Judge (J.D.), Nanded on 18th December, 2009. The record and ( 7 ) proceedings shall be immediately sent back to the trial Court. 11. In view of disposal of the second appeal, civil application No. 3293/2009 stands disposed of accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa737.08