1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5420 OF 2009 Ramchandra Mahadu Raut .. Petitioner versus Vijay Vitthal Pandhare & Anr. .. Respondents Mr.S.R.Page for the petitioner. Mr.R.S.Kadam for the respondents. CORAM : A.S.OKA, J. DATE : 23rd March 2010. P.C.: . On 27th July 2009 notice for final disposal at admission stage was issued. Heard learned counsel appearing for the parties. The petitioner is the defendant in a suit filed by the respondents. The petitioner filed an application at Exhibit 109. The petitioner pointed out that he has already filed a Counter-claim. By the said application, the petitioner prayed that three parties be added as parties to the Counter-claim. The second prayer was that the Counter-claim be treated as a separate suit. By the impugned order, the said application has been rejected. The learned trial Judge while passing impugned order observed that addition of the parties cannot be permitted. The learned counsel appearing for the petitioner has invited attention of the Court to Rule 15 of Order VIII of the Code of Civil Procedure, 1908 as amended by this Court by notification dated 30th September 1966. He submitted that in view of Rule 15, the petitioner who was in position of a 2 plaintiff in Counter-claim was entitled to pray for relief not only against the plaintiff but against third parties. He submitted that the said provision of law has been ignored by the trial Court. He submitted that in the Counter-claim the petitioner was in a position of plaintiff in as much as a Counter-claim is in the nature of a cross-suit. He submitted that in view of the said Rule 15 and considering the fact that a plaintiff is dominus litis, the application ought to have been allowed. The learned counsel appearing for the respondents pointed out that the said Rule 15 brought by way of amendment dated 30th September 1966 by this Court in exercise of powers under section 122 of the Code of Civil Procedure, 1908 has been superseded by a subsequent notification of this Court dated 5th September 1983. He, therefore, submitted that by relying upon Rule 15 as amended in the year 1966, the petitioner cannot get any relief. He submitted that at the most petitioner will have to follow third party procedure. 2. Faced with this difficulty, the learned counsel appearing for the petitioner suggested that the Counter-claim can be treated as a separate suit and by treating it as a separate suit the prayer for adding parties be allowed. 3. I have considered the submissions. In view of the subsequent notification issued by this Court on 5th September 1983, the amendment made under earlier notification dated 30th September 1966 has been superseded by this Court and therefore that part of the amendment to Order VIII by which Rule 15 was added no longer exists on the statute book. Under 3 section 122 of the said Code, this Court has power to annul or alter or added to any of the rules in the Ist schedule. The notifications of the year 1966 and 1983 were issued in exercise of the said powers. Therefore, it is not possible to find fault with impugned order to the extent to which addition of the parties to the Counter-claim was not permitted. 4. Under Rule 6(c) of Order VIII of the said Code, there is a power vesting in the Court to exclude the Counter-claim. In fact, in the application made by the petitioner at Exhibit 109, a prayer to that effect has been made. If the Counter-claim is treated as a separate suit, addition of the parties as prayed can be allowed. In view of section 21(1) of the Limitation Act, 1963, the suit against newly added parties shall be deemed to have been instituted on the date on which they are permitted to be added as parties and therefore issue of bar of limitation in so far as the said parties are concerned will obviously remain open. 5. Hence, writ petition is disposed of by passing following order: : O R D E R : (a) The impugned order dated 12th February 2009 is quashed and set aside. (b) The Counter-claim filed by the petitioner shall be excluded and shall be registered as a separate suit. The date of filing Counter-claim shall be treated as date on institution of the suit. (c) Prayer (a) of application at Exhibit 109 is hereby allowed. It is 4 made clear that addition of the parties will be subject to section 21(1) of the Limitation Act, 1963. It is obvious that all contentions of the parties such as bar of limitation and maintainability of the suit are expressly kept open. (d) The trial Court will exclude the Counter-claim and will direct that the same shall be registered as a separate suit. The said suit shall be heard and decided alongwith suit filed by the respondents. (e) Writ petition is partly allowed in above terms with no order as to costs. (A.S.OKA,J)