DHARMADHIKARI B.P., J.: - Considering the nature of controversy, Rule is made returnable forthwith and heard finally with the consent of Shri Chandurkar, learned Counsel for the petitioner and Shri Tajne, learned Counsel for respondent No.1.

2. The petitioner - original defendant has questioned the order dated 13-2-2006 passed 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 written statement with a view to incorporate counter claim.

3. The suit as filed is for declaration and perpetual injunction and in it the trial 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 No.1 - plaintiff has dispossessed him and he sought leave to amend written statement to point out such subsequent events and to incorporate counter claim. By relying upon the judgment of this Court in the case of (Ganu Kisna Buradkar v. Manik Kisna Buradkar & Anr.)1, reported at 2003(5) Bom.C.R. (N.B.)751 : 2003(3) Mh.L.J. 218, the trial Court has rejected that prayer.

4. Shri Chandurkar, learned Counsel for the petitioner has contended that the reliance upon the judgment of this Court is erroneous and he further states that the counter claim for possession can also be entertained and he further states that when cause of action has accrued subsequently, the counter claim could have been entertained. He has relied upon the judgments of the Honble Apex Court in the case of (Gurbachan Singh v. Bhag Singh)2, reported at 1997(Supp.) Bom.C.R. (S.C.)933 : (1996)1 S.C.C. 770, (Shanti Ra Das Dewanjee v. Dinesh Chandra Day)3, reported at (1997)8 S.C.C. 174 and judgment of Karnataka High Court in (Hanumanthagouda v. Bandu @ Bandeppa Venkatesh Kulkarni4, reported at 2001(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 hand, states that the written statement was already filed - and in view of express prohibition in Order 8, Rule 6A of Civil Procedure Code, the counter claim could not be entertained. He states that as alleged dispossession is after filing of written statement, the petitioner, has no option but to file fresh suit and he further states that the recording of evidence of present respondent has already begun. According to him, in such circumstances, if counter claim is allowed to be filed, 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 in Ganu Kisna Buradkar v. Manik Kisna Buradkar & Anr., reveals that the suit there was for declaration that plaintiff was owner of particular field in question. The respondent - defendant appeared, filed written statement on 23-2-1995. It appears thereafter that on 5-10-2001, an application was made for amendment of counter claim which was already made in the written statement and certain properties which were purchased even before filing of written statement were sought to be included in counter claim. It is in these circumstances that the particular view has been reached:

7. The perusal of judgment in Gurbachan Singh v. 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 C.P.C. In Shanti Ra Das Dewanjee v. Dinesh Chandra Day, the Honble Apex Court has held that when the cause of action for the suit or counter claim was not ex facie barred by limitation under Limitation Act, the application for filing counter claim can be made even after filing of written statement.

8. In Hanumanthagouda v. Bandu @ Bandeppa Venkatesh Kulkarni, the question which is considered is whether counter claim by defendant is entertainable at any stage of the suit.

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