S.LEELA NAIDU Vs. S.KUMAR

JUDGEMENT

(1.) The petitioners being defendants 31 to 35 in the contesting respondent's suit in O.S.No.3067/2003, inter alia, for a decree of partition and separate possession of the subject property are invoking the writ jurisdiction of this Court for assailing the order dated 31.10.2018 made by the learned Additional City Civil Judge, Bengaluru (CCH-44), whereby their application in IA No.20 filed under Order VII Rule 6A of CPC, 1908 is dismissed. The contesting respondent No.1 having entered appearance through his counsel resists the writ petition.

(2.) Learned counsel for the petitioner-defendants vehemently contends that the suit is for a decree of partition and separate possession; all parties are related to each other; the petitioners have filed the written statement on 5.12.2009; the evidence was not yet completed when petitioners have filed their application in I.A.No.20 on 13.12.2012 seeking leave of the Court to file the counter claim; the need to file the same arose since the partition suit did not comprise all the properties which it required to; no prejudice would have been caused to the other side or to other defendants if counter claim was permitted to be filed. So arguing he seeks allowing of the writ petition.

(3.) Learned counsel for the other side per contra contends that the suit is of the year 2003; it was open to the petitioners to file the counter claim when they had filed the Written Statement on 5.12.2009; the issues having been framed in 2010 recording of evidence began in 2011 itself it is only in December 2012 the petitioners filed their application seeking leave to file the counter claim; law does not permit filing of the counter claim after recording of the evidence begins; therefore, no fault can be laid at threshold of the Court below in rejecting the application. So submitting, he seeks dismissal of the writ petition.