JUDGMENT Heard Shri R. Menezes, learned Counsel appearing for the petitioners and Shri A.D. Bhobe, learned Counsel appearing for the respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waives service. 3. The above petition challenges an order dated 9/01/2013 passed by the learned Civil Judge, Senior Division at Mapusa whereby an application filed by the petitioners to amend the counter claim came to be rejected. 4. Shri R. Menezes, learned Counsel appearing for the petitioners has assailed the impugned order, on the ground that the learned Judge dismissed the application only because such amendment would change the nature and/or character of the suit. The learned Counsel further points out that though there are findings to that effect in the impugned order nevertheless the learned Judge has not spelt out in what manner the character of the suit would change. The learned Counsel further submits that the original counter claim filed by the petitioners was inter alia to claim an access through the suit property and for a permanent injunction to restrain the respondents from obstructing the petitioners from using such access. The learned Counsel further submits that the amendment sought to be carried out by the petitioners is to amplify and/or clarify the stand taken by the petitioners in the counter claim. The learned Counsel further submits that it is the contention of the petitioners that the disputed access belongs to the petitioners and the respondents, who are brothers and that the petitioners are entitled for a declaration to that effect. The learned Counsel further submits that even in the original pleadings and the counter claim the stand of the petitioners was that the disputed access belongs to the petitioners as well as the respondents. The learned Counsel further submits that the proposed amendment is essential to decide the entire controversy. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously rejected the application for amendment. 5. On the other hand, Shri A.D. Bhobe, learned Counsel appearing for the respondents has supported the impugned order. The learned Counsel further submits that the proposed amendment is essential to decide the entire controversy. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously rejected the application for amendment. 5. On the other hand, Shri A.D. Bhobe, learned Counsel appearing for the respondents has supported the impugned order. The learned Counsel submits that the question of allowing any amendment after the filing of the counter claim would not arise as it would amount to allowing the petitioners to incorporate facts or introduce the counter claim after the written statement is filed which is according to him is specifically barred under Order 8 Rule 6(A) of the Civil Procedure Code. The learned Counsel further submits that the counter claim which was for injunction simpliciter is sought to be changed for seeking a declaration which itself changes the character of the suit. The learned Counsel further points out that the relief of declaration sought by the petitioners is barred by law of limitation. The learned Counsel has taken me through the impugned order and submits that as the cause of action would change, the learned Judge was justified to refuse leave to amend the counter claim. The learned Counsel further points out that there is no reason for any interference in the impugned order and, as such, the petition deserves to be rejected. 6. I have carefully considered the submissions of the learned Counsel and I have also gone through the records. It cannot be disputed that a counter claim is a cross suit. In the present case on perusal of the counter claim filed by the petitioners the relief sought by the petitioners inter alia in the counter claim is for a permanent injunction restraining the respondents from obstructing the petitioners from using the disputed access. The proposed amendment sought to be incorporated by the petitioners is in respect of the same access as originally claimed by the petitioners in their original counter claim. Apart from that the ground on which the relief is sought by the petitioners was already incorporated in the original counter claim. It is well settled that in the relief of permanent injunction there is an implicit prayer of declaration. In such circumstances, leave to amend the counter claim flows from the original counter claim. Apart from that the ground on which the relief is sought by the petitioners was already incorporated in the original counter claim. It is well settled that in the relief of permanent injunction there is an implicit prayer of declaration. In such circumstances, leave to amend the counter claim flows from the original counter claim. Hence, the learned Judge was not justified to pass the impugned order and refuse leave to the petitioner to amend the counter claim. It is not in dispute that the application for amendment of the counter claim was filed much before the trial had commenced and it has been held by the Apex Court in the judgment dated 27/09/2012 in Civil Appeal No.7043/2012 : [2012 ALL SCR 2922] in the case of Abdul Rehman & anr. V/s. Mohd. Ruldu & Ors., after considering the amendment to Order 6 Rule 17of the Civil Procedure Code, at para 7 thus: “7) It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” In such circumstances, the only aspect to be considered is whether the pleadings and the other relief sought to be incorporated are germane to the matter in controversy in the suit. In the above case, taking note of the pleadings of the parties and the submissions advanced, as the dispute is in respect of the access and the amendments which are sought to be incorporated are pertaining to the same access, I find that the learned Judge was not justified to come to the conclusion that the character of the suit would change and/or there would be any inconsistency in the original plaint. In the facts and circumstances of the case, the learned Judge has acted with material irregularity by dismissing the application for amendment. In the facts and circumstances of the case, the learned Judge has acted with material irregularity by dismissing the application for amendment. The learned Judge has failed to take note of the fact that though the findings have been rendered that the character of the suit would change nevertheless there is nothing to suggest in what manner such character would change. Merely seeking a declaration in the context of the earlier reliefs which were already sought by the petitioners in the counter claim would not by itself change either the correctness of the suit or the cause of action. Hence, the learned Judge was not justified to dismiss the application to amend the counter claim. 7. With regard to the contention of Shri A.D. Bhobe, learned Counsel appearing for the respondents that the petitioners are not entitled to any of the said reliefs, and that the contentions sought to be incorporated are false, are matters which would have to be considered on its own merits during the course of the trial. The same is the situation with regard to the contention of the respondents that the relief now sought in the counter claim is barred by limitation. The learned Single Judge of this Court in the judgment reported in 2011 (6) Mah.L.J. 55 : [ 2011 (5) ALLMR 252 ] in the case of N.C. Banerjee & Company V/s. Manoj Balkrishna Shah & Ors. has observed at para 13 thus: “The averements which are now sought to be introduced in the counter-claim and the reliefs sought to be claimed on the said basis, are based on the said agreement dated 2/11/1994. The relief of specific performance of the said Agreement of Sale has been claimed by the petitioner by way of amendment. The petitioner would be failing in its duty as a Special Officer if it had not asked for the reliefs which it is now seeking by way of amendment. It is trite that at the stage of consideration of an application for amendment, the merits of the amendment need not be gone into as also the issue of limitation, as the parties can ask for appropriate issues to be framed in that regard at the hearing of the suit. Hence, the contentions as regards the subject-matter of the amendment being barred by limitation etc. Hence, the contentions as regards the subject-matter of the amendment being barred by limitation etc. need not be gone into, unless it can be ex facie seen that it is barred by limitation, the court considering an amendment application need not be detained in considering the application for amendment on the said ground.” Considering the observations of this Court the contention of Shri Bhobe to that effect cannot be accepted and all contentions of respondents on merits with that regard are left open. 8. In view of the above, I pass the following order: ORDER (i) The impugned order dated 9/01/2013 is quashed and set aside. (ii) The petitioners are directed to amend the counter claim in the light of the observations made herein above. (iii) No doubt the respondents are entitled to file additional written statement in accordance with law. (iv) Rule is made absolute in the above terms with no order as to costs. Ordered accordingly.