Lsp 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. 8208 of 2008 Balu Bapu Zagade ...Petitioner V/s. Smt. Padmini Rajan Alim & anr. ...Respondents Mr. S.J.Chaurasia i/b. Ashoka Law Firm for the petitioner. V.R.Tripathi for respondents 1 & 2. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 P.C. . Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. 3. Mr. V.R.Tripathi waives notice for respondents 1 & 2. 4. As short question is involved, petition is taken up for final disposal forthwith, by consent. 5. The question that arises for consideration in this petition is whether counter claim can be entertained by the Trial Court once the plaintiff has already filed his affidavit of examination-in-chief. The Roznama placed on record indicates that petitioner-plaintiff had filed 2 affidavit of examination-in-chief on 2nd June, 2008. Admittedly, the counter claim was presented after that date. Once the plaintiff has filed the affidavit of examination-in-chief, the question of entertaining counter claim thereafter does not arise. Counsel for the respondent/defendant, however, submits that if the counter claim is not entertained, it would result in multiplicity of proceedings as the defendant-respondent will have to resort to substantive suit for the relief claimed in the counter claim which action can be pursued by the defendant in accordance with law. It is not necessary to address as to whether the respondent-defendant would eventually succeed in the said action. 6. Suffice it to observe that it is well established position that once plaintiff has produced his evidence, the question of entertaining counter claim therein does not arise. On this limited count, the petition should succeed. The impugned order dated 25th August, 2008 permitting defendant nos. 1 & 2 to file counter claim and taking it on record is set aside. The Suit shall now proceed on the basis that there is no counter claim on record. 7. Once again it is clarified that this order is not expression of opinion either way as to whether the said 3 defendants 1 & 2 can institute substantive suit in relation to the claim specified in the counter claim or otherwise. All questions in that behalf are left open. 8. Petition disposed of on the above terms. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]