JUDGMENT B.P. Dharmadhikari, J.
1. 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 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 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 Hon'ble Apex Court in the case of Gurbachan Singh v. Bhag Singh reported at , Shanti Ra Das Dewanjee v. Dinesh Chandra Day reported at and judgment of Karnataka High Court in Hanumanthagouda v. Bandu @ Bandeppa Venkatesh Kulkarni reported at 2001(3) Civil LJ. 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 and 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 Civil Procedure Code. In Shanty Ra Das Dewanjee v. Dinesh Chandra Day, the Hon'ble 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. Bandit @ Bandeppa Venkatesh Kulkarni, the question which is considered is whether counter-claim by defendant is entertainable at any stage of the suit. The learned Single Judge of Karnataka High Court has held that such counter-claim can be filed even after filing of written statement but it should be before commencement of evidence in the trial in relation to counter-claim as well it should be seen that the plaintiff gets fair opportunity to adduce evidence. In this judgment, the learned Single Judge of Karnataka High Court has derived support from the Division Bench judgment in the case of Shantesh Gureddi v. Smt. Thayamma reported at , for that purpose. The words "defendant has delivered his defence" has been construed in the light of Rule 17 and it has been observed that before the evidence is finally closed by either side, the right given to the defendant under Order VIII, Rule 6-A of Civil Procedure Code can be exercised. The learned Single Judge has extended the principle laid down by the Division Bench thereto a case where evidence is not completely closed by the parties and the matter is not reserved for judgment.
9. In these circumstances, it is apparent that when grievance of present petitioner-defendant is in relation to very same property and he is pointing out subsequent dispossession by respondent after obtaining a temporary injunction, the issue can be conveniently and properly decided in the same suit. This will avoid multiplicity of litigation. The argument about delaying of disposal of suit filed by respondent is fallacious because of the fact that if subsequent suit can be filed, the counter-claim also can be entertained. The delay and labour required in the subsequent suit can be avoided if the counter-claim is allowed to be raised in the same suit.
10. In the circumstances, the impugned order dated 13-2-2006 is quashed and set aside. The petitioner-defendant is permitted to amend written statement and file counter-claim as sought vide Exh. 77 in Regular Civil Suit No. 18 of 2004 and Exh. 77 is accordingly allowed. The parties shall be at liberty to take appropriate steps in the matter in accordance with law. Writ petition is disposed of accordingly. Rule is made absolute in above terms. There shall be no order as to costs.