HARISCHANDRA SHAMRAO KATHA Vs. KAMALAKAR QUKARRAO MALTAPORE

JUDGEMENT

(1.) The only question in the present revision application is whether counter claim by the defendants can only be made in the written statement or subsequently thereto and if counter claim can be made by the defendant even after filing of the written statement, the order passed by the Joint Civil Judge, Junior Division, Karanja, on 27.7.1993 suffers from various error of jurisdiction.

(2.) The non-applicant herein filed a suit for declaration and injunction relating to four Acres of land in field S.No.47 of house Dhraj, against the applicant Harischandra Shamrao Katha (for short 'defendant'). The defendant filed the written statement denying the claim of the plaintiff and contended that plaintiff had made encroachment over 9 Gunthas of land of defendant and is not entitled to any relief. Thereafter the defendant made an application seeking amendment in the written statement setting out a plea and relief of counter-claim. This application filed by the defendant on 21.4.1993 has been rejected by the Trial Court on 27.7.1993 observing that the counter-claim can only be sure in the written statement and thereafter the written statement has been filed and by way of amendment in the written statement, the defendant cannot be permitted to set up a plea of counter-claim.

(3.) The reasoning given by the Trial Court cannot be justified and already is inconsistent with the decision of the Apex Court in Mohendra Kumar v. State of M.P., 1987 AIR(SC) 1395, wherein the Supreme Court held as under :