1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 80/2008 1. M/s. Costa, Pinto and Associates, a duly registered Partnership firm having its Office at 8, Durga Apartments, 2nd Floor, Luis de Miranda Road, represented by its Managing Partner, Mr. Joseph Alfred D'Costa, son of Miguel Antonio D'Costa, businessman, resident of H. No.201A, Saldel Apartments, Pajifond, Margao, Goa 2. Mr. Joseph Alfred D'Costa, son of Miguel A.D'Costa, adult, businessman, resident of H.No.201A, Saldel Apartments, Pajifond, Margao. 3. Mr. M. Antonio D'Costa, 8, Durga Apartments, 2nd Floor, Luis de Miranda Road, Margao, Goa. represented herein by his duly constituted attorney Mr. Joseph Alfred D'Costa. ........... Appellants. Versus. M/s. Prestige Holiday Resorts Ltd., a Company incorporated in India under the Indian Companies Act, 1956 having its registered 2 Office at “Haathi Mahal”, Mobor, Cavelossim, Salcete Goa, 403 731. ........... Respondent. Mr. Galileo Teles, Advocate for the appellants. Mr. A. F. Diniz and Mr. A. D'Souza, Advocates for the respondent. CORAM : A.P. LAVANDE, J. DATE : 6th April, 2009. ORAL JUDGMENT : Heard Mr. Teles for the appellant and Mr Diniz for the respondent. Admit. By consent of the learned Counsel for the parties, the appeal is being disposed of finally. 2. By this appeal, the appellants take exception to the Order dated 26.6.2008 by which an application seeking review of the order dated 2.4.2007 passed by the Addl. Civil Judge, Sr. Division, at Margao in Special Civil Suit No.87/2001/II, has been allowed. 3. The respondent-plaintiff filed the above suit against the 3 appellant-defendants for specific performance of the agreement and in the alternative for damages. The defendants filed written statement on 25.2.2002, denying the claim of the plaintiff. On 23.8.2004, the defendants filed an application for amendment and along with the application for amendment, the defendants also sought a counter-claim with several claims. The trial Court, by an order dated 2.4.2007, allowed the amendment sought as well as the counter-claim. 4. The plaintiff filed an application dated 12.6.07 seeking review of the order dated 2.4.07. The trial Court, by the impugned order dismissed the application in so far as amendment is concerned, however, in respect of the counter-claim, set aside the order on the ground that causes of action, mentioned in the counter-claim in respect of various claims had arisen after the filing of the written statement and, therefore, the counter-claim was not permissible in terms of Order Order 8, Rule 6-A(1) of the Code of Civil Procedure. The trial Court placed reliance upon the Judgment of the Apex Court in the case of Mahendra Kumar vs. State of Madhya Pradesh reported in AIR 1987 SC 1395 and held that since the causes of action for filing the counter claim had arisen after the filing of the written statement, order 4 granting the counter-claim was liable to be reviewed and consequently, allowed the review application. Aggrieved by the said order, the defendants have filed the present appeal. 5. Mr. Teles, learned Counsel for the defendants has invited my attention to the application seeking amendment and counter-claim, and more particularly paragraph 26 in respect of the claims and the dates on which the causes of action have arisen, have been mentioned. He invited my attention to paragraphs 26(A), (a), (b), (k) and 26(B) in which it has been specifically mentioned by the defendants that the cause of action in respect of the said claims arose in July1998, June 2001 and September, 2001 i.e. much prior to the filing of the written statement. In respect of the other claims, learned Counsel submitted that although the dates on which the causes of action arose to the defendants, have not been mentioned, they had arisen prior to the filing of the written statement and, therefore, the trial Court ought not to have allowed the review application. According to Mr. Teles, the trial Court has not exercised its jurisdiction in accordance with the settled principle, but, on the contrary, it has exercised the jurisdiction contrary to law. He, therefore, submitted that the impugned order 5 deserves to be quashed and set aside. 6. Per contra, Mr. Diniz appearing on behalf of the respondent/plaintiff fairly conceded that in respect of the claims mentioned in Clauses 26(A), (a), (b), (k) and 26(B), the alleged causes of action had arisen prior to the filing of the written statement and, therefore, in so far as the said claims are concerned, the impugned order may be set aside, but not in respect of other claims in respect of which the defendants have not even mentioned the dates of alleged causes of action, except Clauses 26A(c) which is stated as October, 2003 and, therefore, no interference is called for in respect of other claims. 7. Having heard the learned Counsel for the parties and having perused the record, I am of the considered opinion that the impugned order is liable to be set aside to the extent of claims mentioned in paragraphs 26(A), (a), (b), (k) and 26(B), since according to the defendants, the causes of action arose prior to the filing of the written statement in respect of these claims. The trial Court has rightly placed reliance upon the Judgment of the Apex Court in the case of 6 Mahendra Kumar vs. State of Madhya Pradesh (supra), to hold that the defendants can file counter-claim in respect of causes of action arising prior to the filing of the written statement. However, the trial Court has committed an error in granting the review in so far as the claims mentioned in paragraphs 26(A), (a), (b), (k) and 26(B) are concerned. In respect of these claims, according to the defendants, the causes of action had arisen much prior to the filing of the written statement in the year 2002. Therefore, the trial Court ought not to have set aside the order granting review in so far as the claims mentioned in the paragraphs 26(A), (a), (b), (k) and 26(B) are concerned. However, in respect of the other claims mentioned in paragraph 26(A), I am unable to agree with Mr. Teles that the trial Court has committed any error in allowing the review application. In terms of Order 8, Rule 6-A(1), the defendant was bound to mention in the application the dates on which the causes of action arose to them for claiming various reliefs. However, perusal of the application for amendment and counter-claim discloses that nowhere the defendants have mentioned the exact dates on which the causes of action arose in their favour. The necessary sequitur, therefore, is that the counter-claim in respect of those claims was not maintainable in terms of Order 8, Rule 6-A(1) 7 of C.P.C. To that extent, the trial Court has correctly exercised the jurisdiction by allowing the review application. 8. For the aforesaid reasons, the impugned order is partly set aside. Order granting review in so far as claims mentioned in paragraphs 26(A), (a), (b), (k) and 26(B) is quashed and set aside. The remaining part of the impugned order is maintained. The defendants shall carry out necessary amendment to the counter-claim within a period of four weeks from today. Liberty to the defendants to file amended copy of the written statement and the counter claim, along with the consequential prayers, in terms of the order passed by this Court. The appeal is partly allowed in the aforesaid terms, with no order as to costs. A.P. LAVANDE, J. ssm.