1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3797 OF 2010 (Dr. Devidas B. Deshmukh vs. Dilip S. Bhugul & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. OCTOBER 20, 2010. Heard Ms. Khisti, learned counsel for the petitioner – defendant No. 2 and Shri Bhoyar, learned counsel for respondent No. 1 – plaintiff. Respondent No. 2 before this Court is defendant No. 1 in the suit and though he is served with notice for final disposal, he has chosen not to appear. Ms. Khisti, learned counsel states that an independent suit to incorporate counter claim as sought to be amended is well within limitation and hence only with a view to save time, amendment to counter claim was sought. She further states that in the case of Sanjay vs. Rajesh, reported at 2007 (6) Mh. L.J. 845, this Court has accepted the request for transfer in such matters when counter claim has exceeded the pecuniary jurisdiction of trial Court. Shri Bhoyar, learned counsel for respondent No. 1 – plaintiff has pointed out to this Court that in the reported judgment, the question of tenability of counter claim exceeding pecuniary jurisdiction was not required 2 to be gone into. However, he has fairly accepted that a suit if filed for claiming relief in proposed amendment, will be within the limitation. In this situation, I find that interest of justice can be met with by permitting the petitioner – defendant to move application for transfer along with application for counter claim before the trial Court as per the procedure upheld by this Court in the case of Sanjay vs. Rajesh, (supra). If such an application is filed, the trial Court shall consider said application as also application for amendment of counter claim as per law and pass fresh orders upon it as early as possible after hearing the parties. With these observations, writ petition is disposed of. No order as to costs. JUDGE *GS.