:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 4772 OF 2007 Shri Mustafa Adam Memon and anr. ...Petitioners Versus Vilas Tukaram Jadhav & Ors. ....Respondents P.M.Pradhan Adv. for the petitioners. Amol P.Mhatre Adv. for respondent no.1 to 10. CORAM: S.C.DHARMADHIKARI, J. 8th January, 2008. P.C. P.C. P.C. : : : 1. The petitioners are the original defendants in the Reg.Civil Suit No. 27 of 2007. They are aggrieved by an order of the Trial Court excluding their counter claim. 2. In other words, in the suit filed by the :2: :2: :2: respondents, the petitioners/original defendants filed their Written Statement and a counter claim. A request was made during the pendency of the suit to exclude the counter claim from consideration. That application has been allowed. 3. Mr.Mhatre appearing for the original plaintiffs was unable to point out to me as how the Trial Court exercised the jurisdiction at the stage at which the matter stands. Beyond stating that the counter claim which is required to be decided as a separate suit was not maintainable before the Trial Court as it lacked the pecuniary jurisdiction, Mr.Mhatre was unable to lay hands on any provision in the Code of Civil Procedure which permits the court to exclude the counter claim in totality at this stage. The provisions of Section 9A, Order 14 Rule 2 of Section 151 of the Code of Civil Procedure also would not come to the aid of the respondents/original plaintiffs in the peculiar facts of this case. In such circumstances, the plain duty of the Learned Trial Judge was to consider the suit and counter claim and pass appropriate orders on the same after both sides have an opportunity contemplated by :3: :3: :3: law. 4. I am not rejecting the application which is preferred by the respondents (Ex.33) and the objections therein. However, all that I wish to clarify is that this is not the stage at which the counter claim could have been excluded. 5. Therefore, the order under challenge is set aside and Ex.33 is restored to the file of the Trial Court. The said application so also the objections therein would be considered by the trial court while deciding the suit. All contentions of both sides in that behalf are expressly kept open. Petition allowed. *******