1 WP 4041.2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 4041 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. A.A.Mukhedkar, Advocate for the petitioner. Mr. Kakade, Advocate for Resp. No. 1 to 4. ..................................... CORAM : S.V.GANGAPURWALA, J. DATE : 19/10/2011 PER COURT : 1. The petitioner is the original plaintiff, who had filed Suit for perpetual injunction. The present respondents/defendants appeared and resisted the Suit by filing Written Statement. After the Written Statement was filed on 27/09/2010, thereafter the issues were framed and the plaintiff led his Examination-in-Chief by affidavit. Thereafter, the defendants filed an application for amendment purportedly under Order VI Rule 17 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] for filing the counter claim. The said application is allowed. Aggrieved thereby, the present Writ Petition is filed. 2 WP 4041.2011 2. Mr. Mukhedkar, the learned counsel for the petitioner submits that the trial Court could not have allowed the application for amendment after the trial has commenced. No due diligence is shown by the defendants in filing the said amendment application. The learned counsel contends that the counter claim could not have been filed after the Written Statement is filed. It is further contended that the said counter claim on the face of it is time barred and such counter claim by way of amendment can not be allowed. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Radhika Devi V/s Bajrangi Singh and others reported in AIR 1996 Supreme Court – 2358 and in the case of Laxmidas Dayabhai Kabrawala V/s Nanabhai Chunilal Kabrawala and others reported in AIR 1964 Supreme Court – 11. The learned counsel further contends that the present counter claim also can not be considered in view of the fact that the said counter claim is for the distinct relief than for what the Suit is filed. By way of counter claim, the defendants are challenging the sale deed of the year 1982, which is not permissible. 3. Mr. Kakade, the learned counsel for the respondents submits that the counter claim can be filed even after filing of the Written Statement provided the cause of action is accrued prior to the filing of Written Statement. For the said purpose, 3 WP 4041.2011 the learned counsel relies on the Judgment of the Apex Court in the case of Mahenra Kumar V/s State of Madhya Pradesh reported in 1987 AIR ( SC ) - 1395. The learned counsel contends that there is no embargo to file counter claim in a Suit for perpetual injunction claiming different relief. The learned counsel contends that the said counter claim is filed immediately after the Written Statement was filed. 4. With the assistance of the learned counsel, I have gone through the application, the pleadings and the impugned order. 5. The issue that the counter claim can be filed even after filing of the Written Statement provided it is on the cause of action prior to filing of the Written Statement, is no longer res integra in view of the Judgment of the Apex Court in the case of Mahendrakumar [ supra ]. 6. The counter claim can be filed in any Suit. The only limitation is counter claim shall not exceed the pecuniary jurisdiction of the Court where the Suit is filed. It is not disputed that by filing counter claim, the pecuniary jurisdiction is not exceeded. 7. It is also a trite law that the merits of the 4 WP 4041.2011 amendment are not required to be considered at the time of considering the amendment application. The issue of limitation is always a mixed question of law and fact. The decision on the same can be given only after the issue of limitation is adjudicated. In such cases, the amendment can be allowed keeping the issue of limitation open. 8. The contention of Mr. Mukhedkar, the learned counsel for the petitioner that the present counter claim could not have been made in the present Suit and should not have been tried along with the Suit, can not be considered at this stage in view of the fact that as per Order VIII Rule 19 of the Code, the petitioner has a right to take an objection to the counter claim and the same can be agitated at that time. At this stage, we are only concerned with the amendment application raising the counter claim. 9. In light of the above, no error is committed by the Court in allowing the amendment application and I need not quash and set aside the same. However, I modify the same to the extent that the said amendment which is allowed, is subject to the limitation. The point of limitation regarding the counter claim is kept open and the said amendment will be deemed to have been made when the application for amendment is filed. 5 WP 4041.2011 10. The Writ Petition is accordingly disposed of with aforesaid observations. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP WP 4041.2011