1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 5 OF 2007 Madhav s/o Bhojiram Jadhav .. APPELLANT VERSUS Sk. Gafoor s/o Sk. Imam & others .. RESPONDENTS Shri N.K. Kakade, Advocate for the appellant. Shri P.R. Katneshwarkar, Advocate for respondent no.1. ===== CORAM : R. M. BORDE, J. DATE : 28 th July, 2009 PER COURT : 1 Suit presented by the plaintiff / respondent no. 1 herein claiming declaration and injunction in respect of the agricultural property came to be dismissed by the trial court whereas counter claim raised by the appellant herein / original defendant in respect of delivery of possession of 1 acre and 20 gunthas land was allowed and the plaintiff was directed to put the defendant in possession of the said area. Being aggrieved by the order passed by the trial court allowing the counter claim raised by the defendant, plaintiff approached the first appellate court by filing Regular Civil Appeal no. 120/2001. Appeal came to be heard and disposed of by the Adhoc District Judge, Jalna who was pleased to allow the same in view of judgment and decree dt. 13-9-2006. One of the points raised against the plaintiff is in respect of accrual of cause of action. Objection is raised at appellate stage that the plaintiff has not specifically pleaded the accrual of cause of action and as such he has failed to satisfy the court as to how the 2 counterclaim is within limitation. 2 I have perused the written statement presented by the defendant wherein counter claim has been raised. There are absolutely no pleadings in respect of accrual of cause of action for presenting the claim in respect of possession of the disputed property. In the absence of any pleadings, it was not possible for the appellate court to consider as to whether the claim raised by the defendant is within prescribed period of limitation. Order VII Rule 1 of the Code of Civil Procedure is applicable for presentation of the counter claim. Rule 1E of Order VII provides that the plaintiff shall state the fact constituting cause of action and when it arose. In the absence of such pleading the consequence would be as enumerated in Rule 11 of Order VII of the Code of Civil Procedure. The claim has to be rejected when it does not disclose cause of action. As stated earlier, principle in respect of pleadings applicable to the plaint are also applicable for raising a counter claim. In view of the inherent deficiencies, it was not possible for the court to ascertain as to how the counter claim raised by the defendant is within prescribed period of limitation. Appellate court was therefore justified in directing rejection of counter claim. Appeal does not raise any substantial question of law. Appeal therefore stands dismissed summarily. 3 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa5.07.odt