( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1737 OF 2008 1. Bhujang s/o Laxman Supekar 2. Namdeo s/o Bhujang Supekar Both r/o Kuldharan, Tq. Karjat, Dist. Ahmednagar. PETITIONERS VERSUS 1. Dnyandeo s/o Bhujang Supekar, 2. Kalpana Ashok Jathar 3. Shivaji s/o Appasaheb Supekar 4. Bhagubai Appasaheb Supekar (petition is abated against this respondent as per order dated 27-04-2009) 5. Bhagwan Rajaram Supekar 6. Kisan Rajaram Supekar 7. Appasaheb Annasaheb Supekar 8. Chandar Annasaheb Supekar 9. Kalyan Digambar Deshmukh (petition is dismissed against this respondent as per order dated 27-04-2009) Respondent Nos. 1 to 8 r/o Kuldharan, Tq. Karjat, Dist. Ahmednagar. RESPONDENTS ..... Mr. N.V. Gaware, advocate for the petitioners. Mr. S.T. Shelke, advocate for respondent No. 1. None for other respondents. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 13th July, 2009] PER COURT : 1. Heard. 2. The petitioners filed suit for partition and separate possession. The respondent No. 1 is the original defendant No. 1 and is son of the petitioner No. 1 and step-brother of the petitioner No. 2. The respondent No. 1 filed counter claim in the suit. He sought declaration to the effect that sale-deed dated 11-01-1996 executed by the petitioner No.1 (plaintiff No.1) in respect of land gat No. 609 and the subsequent two (2) sale-deeds executed by the purchasers as well as the sale-deed executed by the petitioner No. 1 on 11-05-1988 in respect of land bearing gat No. 536 to the extent of 41 Ares area, are not binding on his rights. He submitted that the said sale-deeds were executed by the petitioner No. 1 without any legal necessity and in order to satisfy the immoral expenditure for his vice of liquor drinking. ( 3 ) 3. The application of the respondent No. 1 was allowed. The respondent No.1 also had sought addition of the subsequent purchasers as parties to the suit. The learned Joint Civil Judge by the impugned order dated 09-10-2007 directed the petitioners to amend the plaint and thereafter, directed that the respondent No. 1 shall supply copies to the newly added purchasers/defendants. 4. Having heard learned counsel for the parties and on going through the impugned order, it is amply clear that direction could not have been given to the petitioners to carry out the amendment in the plaint so as to add the parties i.e. the subsequent purchasers. It is well settled that in case of counter claim, it is like a separate suit filed by the concerned defendant and, therefore, though both the proceedings are simultaneously taken up, yet, entity of the counter claim is separate and it is not depend on fate of the suit. Thus, even when the suit is dismissed in default or is withdrawn, the counter claim can be tried separately. The plaintiff is dominus litis and could not have been asked to amend the plaint so as to join the ( 4 ) said subsequent purchasers. The defendant No. 1/respondent No.1 could have been, however, directed to join the said persons and amend the counter claim accordingly. In this view of the matter, the impugned order deserves to be modified. 5. In the result, the petition is partly allowed and the impugned order is directed to be modified. Instead of the plaintiffs, the defendant No. 1 is directed to add the subsequent purchasers named by him as parties to the counter claim and to take steps for service of the summons of the counter claim on them. The said newly added parties be deemed as defendants to the counter claim. The petition is accordingly disposed of. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP1737-08