1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 557 OF 2009 Narayan S/o Dhondiba Raut & another .... PETITIONERS V E R S U S Shivaji S/o Mukinda Raut @ Mali .... RESPONDENT Mr. S.W.Mundhe, Counsel for Petitioner. Mr. M.M.Joshi, Counsel for Respondent. [ CORAM : S.S.SHINDE, J. ] DATE : 17/08/2009 PER COURT : 1. This Writ Petition is filed challenging the Order dated 14/11/2007 passed by the Civil Judge (J.D.), Parali Vaijinath on application below Exh. 192/D in R.C.S. No. 133 of 2003. It is the case of the petitioners that the respondent herein filed R.C.S. No. 133 of 2003 for permanent injunction in respect of land S.No. 120 admeasuring 4 Acres 25 Gunthas having Hissa No. 1 to 5 situated at Parali Vaijinath. Plaint was thereafter amended by the plaintiff. On 10/4/2006, the petitioners, who are original defendants filed Written Statement to the amended plaint. At the same time, they filed one counter claim and prayed declaration of ownership 2 that the petitioners/counter claimants be declared as joint owners of one Acre of land from S.No. 120 Hissa No. 2 situated at Parali Vaijinath. The petitioners also prayed for permanent injunction that the respondents shall not disturb the possession of the petitioners. During the pendency of the Suit, it was realized that the counter claim filed, wherein there are several technical mistakes, were found and as such the petitioner wanted to withdraw the counter claim and to file separate Suit. 2. On 14/11/2007, the Civil Judge (J.D. ), Parali Vaijinath rejected the application filed by the petitioners for withdrawal of counter claim. On 10/12/2007, the petitioners filed application for amendment of counter claim at Exh. 197. By Order dated 1/2/2008, the Court rejected the application for amendment for counter claim filed by the petitioners against the order of rejection of application of counter claim dated 21/4/2007. By Order dated 23/10/2008, this Court allowed to withdraw the Writ Petition. This Writ Petition is filed against the Order dated 14/11/2007, whereby Civil Judge (J.D.), Parali Vaijinath rejected the prayer of withdrawal of counter claim. 3. The learned counsel appearing for the petitioners submitted that since there were mistakes in the counter claim and even the prayer was restricted to the area of one Acre, the petitioners wanted to withdraw the said counter claim seeking permission to file the Suit. 3 The learned counsel further submitted that the Order passed by the learned Civil Judge (J.D.), Parali Vaijinath has resulted in miscarriage of justice and the Order will now preclude the petitioners to raise their claim before the Court. The Court failed to consider the fact that the counter claim filed by the petitioners is as good as plaint in view of Order VII Rule 7 of Code of Civil Procedure and the petitioners can not be precluded from withdrawal of the same. The petitioners have specifically stated in the application that there are some technical mistakes in the counter claim and, therefore, they want to file separate Suit for declaration and ownership and injunction. Learned counsel invited my attention to the pleadings in the petition, grounds taken therein and submitted that the impugned Order deserves to be set aside. 4. The learned counsel appearing for the respondent invited my attention to the reply filed by the respondents and submitted that the Writ Petition is devoid of any merits and same may be dismissed. 5. I have heard the learned counsel appearing for the petitioners at length. I have perused the Order passed by the trial Court. In paragraph 6 of the Order, the trial Court has observed that, “ Claim or counter claim can be proceeded further by making proper amendments ”. The learned Judge further observed that the original defendants/petitioners are not only withdrawing the claim but they 4 have asserted that again claim is to be filed on the very same cause of action. The learned Judge has further observed that the counter claim can be made at the time of final hearing and arguments can be made in that regard. The case of the petitioners does not fall under Order XXIII Rule 3 of Code of Civil Procedure and ultimately the trial Court rejected the application filed by the petitioners. 6. On independent scrutiny of the matter, it can be gathered that, the petitioners have utterly failed to substantiate in their application that despite due diligence, the petitioners could not raise the matter before the commencement of trial. At the initial stage, they filed Written Statement and later on the counter claim was filed. Both the parties have laid the evidence at length. The witnesses are examined and matter was fixed for final arguments and at that stage, the petitioners herein filed application for withdrawal of counter claim. Therefore, in my considered view, learned trial Judge has rightly rejected the application for withdrawal of the counter claim in order to avoid any further delay in concluding hearing of the Suit. No interference is called for. Writ Petition is dismissed. Civil Application, if any, stands disposed of in view of the disposal of main Writ Petition. [ S.S. SHINDE ] JUDGE knp/WP7680.08