1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.731 OF 2010 1. Shri Srihari Subrai Naik Kurade Married, landlord and his wife 2. Smt. Sudini Srihari Naik Kurade Major, house wife, 3. Dr. Prakash Subrai Naik Kurade, Aged 68 years medical Practitioner, Married and his wife 4. Smt. Kamal Prakash Naik Kurade aged 63, house wife, All residents of Savorkatto, Cunclim, In Salcete taluka. .. Petitioners v e r s u s 1. Mr. Lourenco Colaco, son of late sebastiao colaco, major in age, businessman, married and his wife 2. Mrs. Suzana colaco major of age, house wife Both residents of H.No.821, At Bansai Cacoda in Quepem taluka. .. Respondents Mr. V. A. Lawande with Mr. D. Vernekar, Advocate for the petitioners. Mr. Marvin D'souza, Advocate for the respondents. CORAM : A. P. LAVANDE, J. DATE : 11 th February, 2011. ORAL JUDGMENT : Mr. Lawande, learned Counsel for the petitioners 2 seeks leave to delete Article 226 from the cause title. Leave granted. Amendment to be carried out forthwith. 2. Rule. By consent of the learned Counsel for the parties heard forthwith. 3. Heard Mr. Lawande, learned Counsel for the petitioners and Mr. D'Souza, learned Counsel for the respondents. 4. By this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 29th July, 2010 passed by Civil Judge, Senior Division, Quepem in Regular Civil Suit No.38/2007/B by which the counterclaim sought for by the respondents in the suit has been allowed. 5. On 20th August, 2007, the petitioners filed the above suit against the respondents seeking relief of mandatory injunction against the defendants. The defendants filed written statement on 12th December, 2007. Thereafter, issues were framed and the plaintiffs was in witness box. On 14th October, 2009, the defendants filed counterclaim seeking execution of the sale deed in favour of the defendants 3 in respect of an area of 196.801 square metres. Filing of counterclaim was opposed by the plaintiffs. Judgment was brought to the notice of learned trial Judge in the case of Dr. T. D. Padalia and Anr V. District Judge, Nainital and others; AIR 2008 Uttarakhand 11 in which it has been held that counterclaim at the belated stage after commencing of the trial cannot be allowed. However, the trial Court took the counterclaim at exhibit 43 on record and plaintiffs were allowed to file written statement to the same. 6. Mr. Lawande, learned Counsel appearing for the petitioners submitted that in terms of Order VIII, Rule 6A of C.P.C., the trial Court could not have allowed the defendants to file counterclaim after filing of the written statement. Mr. Lawande placed reliance upon the judgment in the case of Maruti Laxman Zhipare (Gawali) V. Rahul Arjun Sarang and another; 2008(6)278. 7. Mr. D'Souza, learned Counsel for the respondents submitted that cause of action although had arisen prior to filing of written statement, the same was continuing and as such, the defendants were entitled to file counterclaim in terms of Order VIII, Rule 6A of C.P.C. 4 8. I have carefully considered the rival submissions and perused the record. 9. Order VIII, Rule 6A of C.P.C. read thus : 6-A- Counter-claim by defendant – (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not : Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 5 10. In the case of Maruti Zhipare (Gawali) (supra), the Apex Court has placed reliance upon the judgment of the Apex Court in the case of Rohit Singh and others V. State of Bihar; AIR 2007 SC 10. In the said case, the Apex Court held that the counterclaim can be filed even after the written statement is filed, but that does not mean that the counterclaim can be raised after the issues are framed and evidence is closed. The Apex Court further held that entertaining of so called counterclaim of defendant nos.3 to 7 by the trial Court after framing of issues for trial was clearly an illegal and without jurisdiction. The Apex Court further held that on this ground alone, the counterclaim was not maintainable. In the present case, counterclaim was filed by the defendants not only after the issues were framed but after the evidence of the plaintiffs was partly led. This being the position, the ratio laid down in the case of Rohit Singh (supra) is squarely applicable and, therefore, the trial Court has clearly erred in entertaining the counterclaim at a belated stage. Therefore, the impugned order dated 29th July, 2010 passed by the trial Court is liable to be quashed and set aside. 11. In view of the above, the impugned order is 6 quashed and set aside and consequently, the order passed by the trial Court permitting the defendants to file counterclaim and directing the plaintiffs to file written statement is quashed and set aside. The defendants / respondents herein are directed to pay costs of Rs.5,000/- to the petitioners/ plaintiffs. The costs shall be deposited in the trial Court within four weeks. Liberty to the petitioners to withdraw the same. 12. The interim order dated 29th October, 2010 is vacated. The parties shall appear before the trial Court on 11th March, 2011. The trial Court shall proceed with the suit and dispose of the same in accordance with law. 13. Rule is made absolute accordingly with no order as to costs. A. P. LAVANDE, J. SMA