( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7451 OF 2008 Bhaskar s/o Uttam Khandagale PETITIONER VERSUS Prabhakar s/o Uttamrao Khandagale and others. RESPONDENTS ..... Mr. P.N. Sonpethkar, advocate for the petitioner. Mr. Kiran Nagarkar, advocate holding for Mr. H.T. Joshi, advocate for the respondent No. 1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th March, 2010] PER COURT : 1. By this petition, the petitioner challenges order dated 14-10-2008 rendered by 10th Joint Civil Judge (J.D.), Aurangabad on amendment application (Exh-61) filed in suit bearing R.C.S. No. 1164/2002. ( 2 ) 2. The respondent No. 1 filed suit (R.C.S. no. 1164/2002) against the petitioner for mandatory injunction. He sought restoration of electricity supply to house property. He also claimed that No Objection Certificate shall be given by the petitioner for installation of separate electricity meter in the portion of house in his occupation. The petitioner filed written statement-cum-counter claim. The petitioner submitted that he was entitled to seek partition and separate possession in respect of agricultural lands shown in his counter claim. The respondent No. 1 lateron withdrew his suit for mandatory injunction. The counter claim, however, continued as it was treated as a separate suit as such. The respondents filed their written statement to the counter claim alleging that the house property is the ancestral property of the parties and, therefore, they were entitled to seek partition of the house property too. They filed an application (Exh-61) for amendment in order to clarify the right to claim partition of the house property bearing C.T.S. No. 8232. They also sought amendment to the effect that they were entitled to ( 3 ) recover the mesne profit at rate of Rs. 1000/- per month. The amendment application was opposed by the petitioner. The trial Court allowed the amendment application. Hence, this petition. 3. Heard learned counsel. 4. It is well settled that counter claim filed under Order-VIII Rule-6A of the Civil Procedure Code is required to be treated as a separate suit. The withdrawal or dismissal of main suit does not amount to disposal of such counter claim. Order-VIII Rule-6A (2) of the Civil Procedure Code clearly provides that such counter claim will have effect as if it is a cross-suit. In other words, when counter claim is filed and is entertained, it may be said that such counter claimant is a plaintiff in the context of such a cross suit. The corollary of this legal position is that the respondents became defendants of the cross suit. 5. The defendants are entitled to raise inconsistent pleas. The defendants had already claimed ( 4 ) that the house property, which is not included in the cross suit, as their ancestral property. Needless to say, by way of amendment, they did not raise any contradictory or mutually destructive plea. The amendment was proposed in order to include the house property of the common hotchpotch. It is pertinent to notice that Article 333 of the Hindu Law (By Mullah) envisages that all the properties shall be included in partition suit. Mr. Nagarkar, appearing for the respondent No.1, states that appropriate court fees shall be paid in the trial Court on the claim for partition in respect of the house property. There appears nothing perverse in the impugned order. If the house property is to be included in the suit by way of amendment, the respondents shall deposit the required court fees and thereafter, they may be allowed to carry out the amendment. 6. In view of the foregoing discussion, the petition is dismissed, with direction to consider the amendment pleadings of the respondents only on their making payment of the court fees within period of four ( 5 ) (4) weeks. The petitioner will be at liberty to file any documents or pleadings to deny the claim put forth by way of amendment. The petition is accordingly disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/wp7451-08