1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3736 OF 2010 Sau.Rajjubai Shantaram Koli ..PETITIONER -VERSUS- Sau.Bebabai Ramkrushna Koli. ..RESPONDENT ......... Mr.S.H. Tripathi, advocate for petitioner. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 29th July, 2010. PER COURT : 1. Heard counsel. The learned counsel would submit that the amendment application could not have been allowed in view of the observations made in the case of “Vidyabai and others V/s Padmalatha and another” {2009(4) Mh.L.J. 30}. The Apex Court in the given case held that proviso appended to Order 6 Rule 17 of Civil Procedure Code takes away jurisdiction of trial Court to allow the amendment after commencement of trial. The Apex Court observed that it would be jurisdictional error to allow the amendment after commencement of trial. The counsel would submit that the trial has began. 2. It is important to notice that the petitioner i.e. plaintiff’s affidavit is filed yet his cross-examination is not conducted as such. 2 Needless to say that trial is at the nascent stage. The amendment application, infact, does not introduce any new plea as such. Perusal of the amendment application (Exhibit-60) reveals that the defendant sought introduction of counter claim under Order 8 Rule 6A of Civil Procedure Code in addition to the prayer for dismissal of suit. The application is, therefore, for leave to file the counter claim which is, in the eye of law, cross the suit as such. It is well settled that such a counter claim is required to be tried as separate suit independent of the main suit in which it is filed. So, even if the present suit (R.C.S. No.88/2007) is dismissed in default or for some other reasons then also such counter claim can be continued. In this view of the matter, the counter claim assumes the separate legal identity for the purpose of trial. In a way, it is a separate suit as such though it is integral part of written statement. Considering this legal position, I do not find any serious fault committed by the trial Court while allowing the leave to put forth the counter claim. The petition is disposed of. (V.R.KINGAONKAR) JUDGE gas/wp3736.10