1 wp 2731.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2731 OF 2009 Laxmanrao Mahadu Mali and another .. Petitioners Versus Ramesh Laxmanrao Mali and others .. Respondents Shri Pravin P. Chavan, Advocate for Petitioners. Shri P. S. Shendurnikar, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 11TH JULY, 2011. PER COURT : . The present petitioners are the original defendants. The present respondent No. 1/original plaintiff filed a suit for perpetual injunction restraining the defendants from interfering in his possession in respect of the suit property. The said suit was filed on 29.05.1997. The defendant Nos. 1 to 3 filed written statement on 07.06.1997 inter alia contending that the defendant No. 2 is the owner of the whole gat No. 530, so also its possessor. The said avernment is made in para 1 of the written statement. 2 wp 2731.09 So also in para 11 and 14 of the said written statement had confirmed that he is in possession of the said gat No. 530 and also the owner. 2. The matter was pending before the Trial Court. Thereafter in the year 2008 i. e. almost after eleven (11) years, the present petitioners filed an application for filing counter claim contending that pursuant to an order of injunction the defendants i. e. the petitioners have been dispossessed and by way of counter claim wants to claim the relief of possession. The Trial Court rejected the said application. Aggrieved thereby the defendant Nos. 1 and 2 have filed the present writ petition. 3. Shri P. P. Chavan, the learned counsel for petitioners with all his persuasive skill contends that the defendants can file the counter claim at any time, even after filing of written statement. There are three modes in which the defendants can file counter claim : i) Along with written statement. ii) By way of an amendment. iii) By invoking Rule 9 of Order VIII of the Code of Civil Procedure. 3 wp 2731.09 The only condition is the cause of action should have arisen before the filing of the written statement. There is no bar to file written statement after filing of counter claim. For the said purpose, the learned counsel relies on the judgments of the Apex Court and of this Court as under : i) Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day reported in AIR 1997 SCW 3922. ii) Mahendra Kumar and anr. Vs. State of M. P. and others reported in AIR 1987 SC 1395. iii) Sonu Textiles, Mumbai Vs. Punjab National Bank reported in 2008(2) Mh. L. J. 218. iv) Oberlino Cirilo Sanches & others Vs. Momento Vaz and another reported in 2006 (5) Bom. C. R. 383. v) Hemraj Gyaniram Patle & others Vs. Yamunabai wd/o Fanda Pardhi and others reported in 1996(2) Mh. L. J. 844. vi) Manikchand Fulchand Katariya Vs. Lalchand Harakchand Katariya reported in 1994(1) Mh. L. J. 732. vii) Teofilo Barreto Vs. Sadashiv A. G. Nasnodkar and others reported in 2007 (6) Mh. L. J. 127. viii) Sheshrao S/o Bhaurao Sable Vs. Ganesh S/o Mahadeorao Sable and others reported in 2006 (6) Mh. L. J. 728. 4 wp 2731.09 ix) Datta Bandu Sadale and others Vs. Sridhar Payagonda Patil and others reported in 1992 (1) Mh. L. J. 784. 4. The learned counsel further contends that the object of filing the counter claim is to avoid the multiplicity of the suit. Even the facts and reliefs which are sought to be averred and claimed by way of counter claim can also be prosecuted by way of a separate suit, but that would result in multiplicity and very object of Order VIII Rule 6-A of the Code of Civil Procedure would stand frustrated. The learned counsel further contends that even if cause of action is not stated in the written statement that would not preclude the defendant from filing the counter claim subsequently and stating the cause of action in the counter claim. The learned counsel further contends that the merits and demerits of the counter claim need not be gone into at this stage, as it would be a question of proof at the time of deciding the suit as to whether the defendant proves the cause of action stated in the counter claim. 5. Shri Shendurnikar, the learned counsel for the respondent No. 1/original plaintiff supports the order impugned and submits that the pleadings in the original written statement cannot be ignored and when the pleadings in the written statement itself 5 wp 2731.09 depict the case of the defendant that even on the date of filing of written statement he was in possession, then his alleged theory of dispossession would mean that the alleged cause of action has arisen after the filing of the written statement. 6. The proposition put forth by Shri Chavan, the learned counsel for petitioners that the counter claim can be filed even after filing of the written statement need not be dilated. The same is a trite law. As such, I need not discuss the judgments referred by the learned counsel for petitioners in this regard. 7. The defendant is entitled to file counter claim even after filing of the written statement. The only limitation is that the counter claim can be filed on a cause of action which has arisen prior to the filing of the written statement. The cause of action for filing written statement may be different than that of the plaint. In the present case, the only dispute would be in view of the written statement already filed and the contentions raised therein, whether it can be said that the counter claim which is sought to be filed is based on a cause of action before filing of the written statement. 8. The plaintiff in the plaint has come with a specific case 6 wp 2731.09 that he is in possession of the suit property. The said plaint is presented on 29.05.1997. The defendants have filed the written statement on 07.06.1997 contending that the defendant No. 2 is the owner of the whole property and is also in possession of the same. After a long slumber of eleven (11) years the counter claim is filed contending that the defendant has been dispossessed pursuant to an order of injunction on 30.05.1997 i. e. prior to the filing of the written statement. The Trial Court on consideration of the written statement filed earlier and counter claim filed subsequently came to the conclusion that in view of the specific recitals in the written statement which is filed on 07th June, 1997 contending therein that the defendant No. 2 is in possession of the property, the present counter claim could not have been allowed. Even the Court while passing order below Exhibit 108 found that the exact date of cause of action is not given in the said application. 9. The Court has got power U/O VIII Rule 19 (Bombay Amendment) of the Code of Civil Procedure to pass an order of exclusion of counter claim, so also has the power and jurisdiction to reject the application for filing of counter claim, if it found that no cause of action has been stated or the facts and circumstances 7 wp 2731.09 do not show that the cause of action has arisen prior to the date of filing of written statement. 10. In view of the above that on 07.06.1997 the defendant had filed a written statement specifically contending that even as on that date of filing of written statement he is in possession of the suit property, now after a long slumber of eleven (11) years cannot be allowed to turn around and state that he may be allowed to file counter claim for possession on the ground that he has been dispossessed pursuant to an order of injunction and that too prior to filing of the original written statement 11. In the light of above, I do not see any error committed by the Court while passing the impugned order. 12. The rejection of application for counter claim would not take away the right of petitioners to resort to any other remedies available to them in law. 13. The writ petition is accordingly dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/July 11