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2012 DIGILAW 1426 (BOM)

Serolina D'Costa v. Antonio Jose Rodrigues

2012-08-01

F.M.REIS

body2012
Judgment : Heard Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioners, Shri C. Mascarenhas, learned Counsel appearing for the respondent nos. 1 to 4 and Shri V. Menezes, learned Counsel appearing for the respondent no.5. 2. The above petition challenges an order passed by the learned Civil Judge Senior Division, at Quepem, whereby the counter claim filed by the petitioners came to be rejected essentially on the ground that such counter claim was filed against the plaintiffs as well as the codefendant/respondent no.5 herein. 3. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioners has pointed out that the written statement along with counter claim came to be filed in the year 1997 when admittedly, the respondent no.5 was not a party to the suit. The learned Senior Counsel has further pointed out that as such the question of contending that such counter claim was filed against the codefendant/respondent no.5 herein is totally misplaced and cannot be sustained. The learned Senior Counsel has further pointed out that the declaration and other reliefs sought by the petitioners in the counter claim were to be adjudicated as against the plaintiffs who were the parties to the suit in the year 1997 which according to the learned Senior Counsel are the respondent nos. 1 to 4 herein. The learned Senior Counsel as such submits that as there is no counter claim filed as against the respondent no.5, the impugned order cannot be sustained. 4. Shri V. Menezes, learned Counsel appearing for the respondent no.5 has pointed out that as per the relief which has been sought in the counter claim, such relief is as against Philip Rodrigues who according to the learned Counsel Shri V. Menezes, whose legal heir is the respondent no.5 herein. The learned Counsel further pointed out that though the respondent no.5 was not a party to the proceedings in the year 1997, the relief in the counter claim shows that such relief was also as against the respondent no.5. The learned Counsel as such submits that the petition deserves to be rejected. 5. Shri C. Mascarenhas, learned Counsel appearing for the respondent nos. 1 to 4 points out that the counter claim deserves to be rejected as it does not disclose any cause of action as against the said respondents. 6. The learned Counsel as such submits that the petition deserves to be rejected. 5. Shri C. Mascarenhas, learned Counsel appearing for the respondent nos. 1 to 4 points out that the counter claim deserves to be rejected as it does not disclose any cause of action as against the said respondents. 6. I have considered the submissions of the learned Counsels appearing for the respective parties and I have also perused the records. Taking into consideration the submissions of Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioners that the counter claim filed by the petitioners was only against the parties who were parties to the suit as in the year 1997 when the counter claim was filed, the grounds of the learned Judge to reject the counter claim on the assumption that such counter claim was also as against the codefendant/respondent no.5 herein cannot be sustained. The contention of Shri V. Menezes, learned Counsel appearing for the respondent no.5 is a matter which would be dealt with by the Court while considering the counter claim on its own merits. The contention of Shri Mascarenhas, learned Counsel appearing for the respondent nos. 1 to 4 to the effect that the counter claim is to be rejected as it does not disclose cause of action is a matter which has to be considered by the learned Judge if at all any such application is filed in accordance with law and not in the present petition. 7. In view of the said submissions of Shri J. E. Coelho Pereira, the learned Senior Counsel appearing for the petitioners, I find that the learned Judge was not justified to come to the conclusion that the counter claim filed by the petitioners is against the co: defendant/respondent no.5 herein. Hence, the impugned order cannot be sustained and deserves to be quashed and set aside. 8. During the course of the hearing of the above petition, Shri Mascarenhas, learned Counsel appearing for the respondent nos. 1 to 4 points out that the respondent nos. 1 and 3 have expired. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioners points out that such aspect does not affect the disposal of the above Writ Petition. 9. In view of the above, Rule is made absolute in terms of prayer clause (a). 1 to 4 points out that the respondent nos. 1 and 3 have expired. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioners points out that such aspect does not affect the disposal of the above Writ Petition. 9. In view of the above, Rule is made absolute in terms of prayer clause (a). The learned Judge shall proceed to adjudicate the counter claim filed by the petitioners in accordance with law as against the parties who were before the Court as on the date of the filing of the counter claim by the petitioners.