1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 7 OF 2007. 1. Shri Vassudev Budhaji Morajkar ( since deceased ) through his legal representatives 1(a) Shri Sameer V. Morajkar, 1(b) Shri Sudhanshu V. Morajkar, both major of age, r/o Mad Madiayachi Thikan, Haturlim, Bicholim Goa. 1(c) Smt. Dakshata D. Padval, 1(d) Shri Devidas Padval Both major of age, r/o Arais Wada, Nogao, Bardez Goa. 1(e) Smt. Vandita Naik, 1(f) Shri Rajesh Naik, Both major of age, r/o Kalapur, Tiswadi, Goa. 2. Smt. Indumati Vassudev Morajkar, major in age, Indian National, r/o H.No.468, Haturlim, Mayem, Bicholim Goa. ... Appellants V e r s u s 1. Shri Harichandra Vassudev Morajkar ( Since deceased ) through legal representatives 1(a) Shri Raghuvir Harichandra Morajkar ( son ) 54 years of age, service, 1(b) Smt. Reshma R. Morajkar ( daughter in law ) 42 years of age, housewife, both residing at Konati, Narva, Bicholim Goa. 1(c) Shri Anand H. Morajkar ( son ) 45 years of age, service, at* 2 1(d) Smt. Urmila A. Morajkar ( daughter in law ) 35 years of age, housewife, both residing at Dhorli, Haturli, Bicholim Goa. ... Respondents Mr. V. Menezes, Advocate for the Appellants. Mr. J. P. Mulgaonkar, Advocate for the Respondent nos.1(a) to 1(d). Coram :- A. H. JOSHI, J. Date :- 7 th SEPTEMBER, 2009. JUDGMENT 1. Admitted facts of the case are as follows :- “Present appellants' suit No. 87/93/B was withdrawn. In the said suit defendant's cross objection was also withdrawn later without any liberty”. 2. Present appellant is the defendant in said Regular Civil Suit No. 87/93/B. He later filed Regular Civil Suit No. 57/96/C. In the said new suit the objection as to maintainability of suit was raised by defendant. The ground of objection is that the counter claim raised by said plaintiff as defendant in earlier Regular Civil Suit No. 87/93/B was withdrawn without liberty. 3. The learned Trial Court has framed issues. Issue No.3 reads as follows :- at* 3 “Whether the defendants prove that the suit is not maintainable in view of the withdrawal of the counter claim in Regular Civil Suit No. 87/93/B by plaintiff and thus is barred under Order VII Rule 11 r/w 23 Rule of C.P.C. and by principle of resjudicata ? 4. By order dated 6.8.2003 learned Trial Court dismissed Regular Civil Suit No. 87/93/B when, admittedly the copies of the pleadings in the earlier suit were not filed. 5. The aggrieved defendant preferred Regular Civil Appeal, being Regular Civil Appeal No. 177/2003 which has been allowed. The Appellate Court has set aside impugned order and has remanded the case for hearing and disposal according to law. This order to remand is challenged in this appeal. 6. Maintainability of suit can be tried as preliminary if from record it is made out that the issue can be so tried as a preliminary issue. However, without looking into copy of counter claim, dismissal of suit may not be permissible. 7. It will suffice to observe that the certified copy of pleadings including the counter claim in earlier suit be filed unless by now those are already filed. The Trial Court would be free to try issue no.3 as a preliminary issue, at* 4 according to law if necessary by recording evidence. 8. With above observations appeal is disposed of. 9. In the circumstances, parties are directed to bear own costs. A. H. JOSHI, J. at* at*