GURUDATTA S/O GULABRAO WAGHMARE Vs. RAMBHAU

JUDGEMENT

(1.) IN a suit for permanent injunction to protect his possession filed by Respondent/ plaintiff, written statement was filed in 2006 and, thereafter, plaintiff also tendered his affidavit of examination in chief on record. After that affidavit was filed, in the month of October, 2010 the Petitioner/ defendant lodged counter claim in relation to very same property claiming declaration that they have become owner by adverse possession and also injunction to protect their possession. They contended that cause of action arose on 10th October, 2010. It was opposed by present Respondent/ plaintiff by pointing out that as affidavit of examination in chief is already accepted and written statement was filed much earlier, stage of filing counter claim was already over. By impugned order trial Court has refused to take counter claim on record.

(2.) SHRI Hon has placed reliance upon the judgment of learned Single Judge of this Court in the case of "Teofilo Barreto Vs. Sadashiva G. Nasnodkar and others" reported in 2007 (3) Mh.L.J. 850 and the judgment of Honourable Apex Court in the case of "Shri Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others" reported in JT 1996 (5) (S.C.) 428 to urge that view taken is not correct and as the cause raised vide counter claim is connected with suit and a fresh suit by defendant for same purpose would have been within limitation, counter claim needed to be entertained.

(3.) THE judgment of Honourable Apex Court in the case of "Rohit Singh and others Vs. State of Bihar (Now State of Jharkhand)" (supra), particularly paragraph 15 on which Respondent has placed reliance shows that there written statement was filed, trial began and evidence of parties as also of intervenor was over. Evidence was closed and arguments on the side of intervenors had been concluded. The suit was then dismissed as there was default on part of plaintiff to address arguments and it was restored. Honourable Apex Court has found that after suit was restored, at that stage, no counter claim could have been entertained. The facts clearly show that the stage of delivery of defence by defendant in the matter had already expired. In the case of "Smt. Parvathamma Vs. K.R. Lokanath and others" (supra) the question about stage of delivery of defence has not been adjudicated upon. Same can be said even in relation to view of this Court in the case of "Nagnath Jagannath Lomate and another Vs. Narsing Sambha More and others" (supra).