-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 721 OF 2011 Shri Naresh Pandurang Gosavi, son of late Mr. Pandurang Gosavi, major of age, Indian National, Resident of Bhati, Sanguem, Goa. …... Petitioner V e r s u s 1. Deputy Conservator of Forests, having his office at Ponda, Goa. 2. Conservator of Forests, having his office at Panaji, Goa. 3. Government of Goa, represented by the Chief Secretary, Government of Goa, having office at Porvorim, Bardez, Goa. 4. Ms. Laxmi Pandurang Gosavi, widow of late Mr. Pandurang Gosavi, major of age, Indian national, Resident of Bhati, Sanguem, Goa. 5. Mr. Suresh Pandurang Gosavi, son of late Mr. Pandurang Gosavi, major of age, Indian national, Resident of Bhati, Sanguem, Goa. 6. Ms. Laxmi Suresh Gosavi, wife of Mr. Suresh Gosavi, major of age, Indian national, Resident of Bhati, Sanguem, Goa. 7. Ms. Lopa Pandurang Gosavi, daughter of Mr. Pandurang Gosavi, major of age, Indian national, Resident of Bhati, Sanguem, Goa. …... Respondents Mr. Ryan Menezes, Advocate for the Petitioner Ms. Susan Linhares, Addl. Government Advocate for the Respondent nos.1, 2 and 3. -2- Coram :- F. M. REIS, J Date : 30 th November, 2011. ORAL JUDGMENT Heard Shri Ryan Menezes, learned Counsel appearing for the Petitioner and Ms. Susan Linhares, learned Addl. Government Counsel appearing for the Respondent Nos. 1, 2 and 3. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Addl. Government Advocate appearing for the Respondents waives service. 3. The above Petition challenges the Order dated 04.11.2011 passed by the learned Adhoc District Judge, Margao, whereby an application to amend the counter claim filed by the Respondent came to be allowed. 4. Shri Ryan Menezes, learned Counsel appearing for the Petitioner, has assailed the impugned Order essentially on the ground that the counter claim was dismissed by the learned Judge and the same having not been challenged by the Respondents before this Court, the question of amending such counter claim does not arise all. The learned Counsel has pointed out that this Court whilst disposing of First Appeal no. 13/2006, had set aside the impugned part of the Judgment passed by the learned District Judge and remanded the matter for fresh adjudication of the suit filed by the Petitioner after permitting the Petitioner to amend the plaint. The learned Counsel further pointed out that besides filing -3- written statement to the amended plaint, the Respondents chose to amend the counter claim which had become extinct. However, learned Counsel did not dispute that the Respondents can always file a counter claim which is referable to the amended plaint filed by the Petitioners. The learned Counsel as such submitted that the impugned Order be quashed and set aside. 5. On the other hand, Ms. Linhares, the learned Addl. Government Advocate, appearing for the Respondents has pointed out that the amendment to the counter claim is to dispute the correctness and/or legality of the documents sought to be relied upon by the Petitioners on the basis of the amended plaint which came into existence after the original suit was filed by the Petitioners. Learned Addl. Government Advocate further pointed out that the Respondents are entitled to dispute the correctness of the said document to declare the Orders passed during the pendency of the suit as null and void. Learned Counsel further pointed out that in view of the fact that the Petitioners have amended the written statement, the Respondents are entitled to file such counter claim to dispute the correctness of the averments amended in the original plaint. Learned Counsel, as such submits that no interference is called for in the impugned Order. 6. After hearing the learned Counsel and on perusal of the record, I find that Shri Menezes, learned Counsel appearing for the Petitioners, is justified to contend that the original counter claim filed by the Respondents had been finally disposed of and the same was not challenged by the Respondents before this Court. Hence, the said counter claim naturally did not survive and, consequently, the question of amending the said counter claim does not arise at all. As such, the -4- learned Judge was not justified to allow the amendment to the counter claim by the impugned Order. 7. But, however, considering the averments sought to be introduced by the Respondents by amending the original counter claim, I find that they are to dispute the correctness and/or legalities of the Orders relied upon by the Respondents after the original plaint came to be amended. Whilst filing the additional written statement, naturally, the Respondents were at liberty to file such counter claim to dispute the correctness of Orders and claim any reliefs to which they are so entitled. Taking note of the submissions of Shri Menezes, the learned Counsel appearing for the Petitioners, to the effect that the Respondents can always file such counter claim to the amended plaint, I find that in the interest of justice, the Respondents should be given an opportunity to file a counter claim in the suit filed by the Petitioners which is referable to the amended pleadings incorporated in the original plaint by the Petitioners. Subject to such liberty, the impugned Order stands quashed and set aside. 8. In view of the above, I pass the following : ORDER (i) The impugned Order dated 04.11.2011 is quashed and set aside. (ii) The Respondents are at liberty to file a fresh counter claim referable to the amended pleadings incorporated by the Petitioners. The Petitioners are thereafter entitled to file an additional written -5- statement to such counter claim and the learned Judge shall thereafter proceed in accordance with law. (iii) Rule stands disposed of in the above terms. (iv) The Petition stands disposed of with no Orders as to costs. F .M. REIS, J. arp/*