( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1152 OF 2005 Kondopant s/o. Digamberrao Kulkarni .. Appellant Versus Hanmantreddy s/o. Sheshreddy - died .. Respondent through L.Rs. Shri C.R. Deshpande, Advocate for the appellant. Shri A.V. Patil, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 03.07.2009 P.C. :- 1. Heard Adv. Shri C.R. Deshpande for the appellant and Adv. Shri A.V. Patil for the respondents. Both advocates have taken me through the judgments of the Trial Court and the First Appellate Court. Adv. Shri C.R. Deshpande states that by examining the appellant himself and by examining Cadastral Surveyor Venkat Dhunde, the appellant/defendant has proved his counter ( 2 ) claim regarding actual possession over the alleged portion in the property of plaintiff/respondent. At this stage Adv. Shri A.V. Patil stated that after withdrawal of the appeal, the respondent/plaintiff did not turn up and therefore counter-claim came to be decided ex-parte. So, in the interest of justice, the matter may be remanded and respondent/plaintiff may be allowed to file counter written statement to the counter claim and parties may be allowed to lead evidence. Considering the facts and circumstances of the case, in my opinion, this limited prayer can be allowed. In these circumstances, this Second Appeal is allowed partly with following directions :- (1) The judgments and decrees of the Trial Court and the First Appellate Court are set aside. (2) The matter is remanded back to the Trial Court with directions that present respondent/plaintiff may be allowed to file his counter written statement to the counter-claim and contest the counter-claim for injunction. (3) The parties will also be allowed to lead fresh evidence, & if necessary recall the witnesses for cross-examination and then the Trial Court shall decide the counter-claim afresh according to the law. ( 3 ) 2. With these directions the Second Appeal is disposed of. [P.R. BORKAR,J.] snk/2009/JUL09/sa1152.05