1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9679 OF 2003 Vithal Mahadeo Jagdale ...Petitioner vs. Sahebrao Mahadeo Jagdale ...Respondent Mr.D.S.Mhaispurkar i/b Ms V.S.Mhaispurkar for the petitioner Mr.Dilip Bodake for the 2nd respondent CORAM :A.S.OKA,J. DATE : OCTOBER 15, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the second respondent. The present petitioner is the second defendant in a suit filed by the first respondent for partition and separate possession. By the impugned order, the learned Trial Judge has declined permission to the petitioner to present his counter-claim. 2 The learned counsel for the petitioner submitted that the suit filed by the first respondent is for general partition. He pointed out the averments in the written statement of the petitioner. He pointed out that certain properties which should have been made subject matter of the suit have not been made a part of the suit properties. He pointed out that the cause of action for filing of the counter-claim was available before filing of the written statement. Therefore, even subsequent to the filing of the written statement, counter-claim could have been filed. He pointed out that counter-claim ought to have been taken on record to avoid multiplicity of the proceedings. He submitted that the counter-claim 2 is maintainable though prayer in the counter-claim shows that the petitioner is seeking partition against the 2nd defendant. He submitted that as a defendant in a suit for partition, the petitioner can always claim partition of his share. 3 I have given careful consideration to the submissions. In a suit of the year 1993, the petitioner filed written statement on 28th December 1993. He was permitted to carry out amendment to the written statement on 30th July 2001. Thereafter, the present application is filed in February 2002. 4 Even according to the case of the petitioner he has contended in the written statement that there are certain properties which ought to have formed part of the suit property. The petitioner being a defendant in a suit for general partition, he can claim partition and separate possession of his share in the suit properties at appropriate stage. 5 Considering the fact that the original written statement was filed in December 1993 and the application on which the impugned order has been passed was made nearly after eight and half years thereafter, the trial court has passed a discretionary order declining to take the counter-claim on record. It is not possible to interfere with the discretionary order. Rejection of the application made by the trial court under the impugned order will not prevent the petitioner from filing a substantive suit. 6 Subject to what is observed above, no case for interference is made out. Writ petition is rejected. 3 JUDGE