ORAL JUDGMENT :- Considering the nature of controversy, Rule is made returnable forthwith and heard finally with the consent of Shri Chandurkar, learnded counsel for the petitioner and Shri Tajne, learned counsel for respondent 1.

2. The petitioner-original defendant has questioned the order dated 13-2passed below Exh. 77 in Regular Civil Suit No. 18 of 2004 passed by 3rd Joint Civil Judge, Junior Division, Akot, refusing him permission to amend attention statement with a view to incorporate counter-claim.

3. The suit as filed is for declaration and perpetual injunction and in it the 1 Court has granted temporary injunction in favour of respondent No. 1 plaintiff. The case of the petitioner is that under the garb of that order, respondent. I-plaintiff has dispossessed him and he sought leave to amend written statement to point out such subsequent events and to incorporate counter-claim. relying upon the judgment of this Court in the case of Ganu Kisna Buradkar Manik Kisna Buradkar and anr., reported at 2003(3) Mh.L.J. 218, the trial court has rejected that prayer.

4. Shri Chandurkar, learned counsel for the petitioner has condended that reliance upon the judgment of this Court is erroneous and he further states the counter-claim for possession can also be entertained and he further states when cause of action has accrued subsequently, the counter-claim could have entertained. He has relied upon the judgments of the Honble Apex Court in case of Gurbachan Singh vs. Bhag Singh, reported at 1996(2) Mh.L.J. (SC) = (1996)1 SCC 770, Shanti Ra Das Dewanjee vs. Dinesh Chandra Day, reported at (1997)8 SCC 174 and judgment of Karnataka High Court in umanthagouda vs. Bandu @ Bandeppa Venkatesh Kulkarni, reported at 1(3) Civil L.J. 910. The last judgment has been relied upon to state that even though the evidence has begun, the Court has discretion in the matter and counter-claim can be entertained.

5. Shri Tajne, learned counsel for respondent No.1, on the other states that the written statement was already filed and in view of e prohibition in Order 8, Rule 6A of Civil Procedure Code, the counter-claim not be entertained. He states that as alleged dispossession is after filing of statement, the petitioner, has no option but to file fresh suit and he further that the recording of evidence of present respondent has already According to him, in such circumstances, if counter-claim is allowed to be it would cause unnecessary further delay in the suit instituted by the respondent.

6. The perusal of judgment of this Court relied upon by the petitioner Ganu Kisna Buradkar vs. Manik Kisna Buradkar and anr., reveals that the there was for declaration that plaintiff was owner of particular field in question. The respondent-defendant appeared, filed written statement on 23-2-19 appears thereafter that on 5-10-2001, an application was made for amend counter-claim which was already made in the written statement and certain properties which were purchased even before filing of written statement sought to be included in counter-claim. It is in these circumstances the particular view has been reached.

7. The perusal of judgment in Gurbachan Singh vs. Bhag Singh, reveals that when a suit is for injunction, counter-claim for possession can be entertained therein in view of provisions of Order 8, Rule 6-A of Civil Procedure Code. In Shanty Ra Das Dewanjee vs. Dinesh Chandra Day, the Honble Apex Co held that when the cause of action for the suit or counter-claim was not ex barred by limitation under Limitation Act, the application for filing counter can be made even after filing of written statement.

8. In Hanumanthagouda vs. Bandu @ Bandeppa Venkatesh Kulkar question which is considered is whether counter-claim by defend entertainable at any stage of the suit. The learned Single Judge of Karnataka Court has held that such counter-claim can be filed even after filing of statement but it should be before commencement of evidence in the trial relation to cou

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