JUDGMENT 1. The petitioners in W.P.No.49401/2019 and W.P.No.30526/2019 are plaintiffs before the trial court. The plaintiffs have challenged the order of the trial court whereby application filed by defendant no.1 under Order VI Rule 17 CPC, seeking for amendment of the written statement and to raise a counter-claim was allowed. The said order is challenged in W.P.No.49401/2019. 2. While the order on I.A.No.2/2019, whereby the application filed by the plaintiffs seeking exclusion of the counter-claim filed by defendant no.1 came to be rejected, which order is challenged by the plaintiffs in W.P.No.30526/2019. 3. As both the writ petitions deal with an identical factual matrix and the impugned orders relate to the same suit, both the petitions are taken together and disposed off by a common order. Parties are referred to by their ranks before the trial court. 4. The plaintiff nos.1 and 2 are the children of Late K.C.Udayashankar who is one of the sons of Late K.C. Sadashivaiah and Nagavenamma. Plaintiff no.3 is the wife Late K.C. Udaya Shankar. Defendants 1 to 6 are the children of Late Nagavenamma and Late K.C. Sadashivaiah. The suit was filed claiming the relief of partition and to carve out and allot 1/7th share to the plaintiffs in the suit schedule property and also for a declaration that the will dated 01.12.1969 stated to have been executed by Late Nagavenamma in favour of the first defendant was not a genuine will and not binding on the plaintiffs. The defendant no.1 has filed the written statement denying the averments and put forth the case that the first defendant was entitled to the suit property by virtue of a Will dated 01.12.1969. 5. It is submitted that application filed under Order VI Rule 17 CPC, by the first defendant was seeking to raise the contention that earlier suit O.S.No.26021/2010 was filed by the defendant nos.3, 4 and 6 seeking for partition and the plaintiffs not having sought for the relief of partition in the said suit, present suit is barred by the principles of Order II Rule 2. It was further contended that that the plaintiffs are in permissive possession of the property and in light of their claim for partition, defendant no.1 was entitled to seek the relief of mandatory injunction to direct delivery of vacant possession which is in the nature of a consequential remedy, if the suit of the plaintiff is dismissed. It was further contended that that the plaintiffs are in permissive possession of the property and in light of their claim for partition, defendant no.1 was entitled to seek the relief of mandatory injunction to direct delivery of vacant possession which is in the nature of a consequential remedy, if the suit of the plaintiff is dismissed. It was further asserted that the cause of action for the counter-claim arose on 16.08.2011 when the plaintiffs have filed the suit claiming the relief of partition. 6. The said application filed by the first defendant was objected to by contending that the same was filed after a lapse of about 08 years, that the relief sought for would result in change in the nature of the suit and in effect, relief sought for was in the nature of declaratory relief with further relief relating to recovery of possession which is impermissible. It was also asserted that the relief sought for by defendant nos.3, 4 and 5 in O.S.No.26021/2010 was with respect to the self-acquired properties of husband of the first plaintiff and father of second and third plaintiff. The validity of the Will was also challenged casting aspersions in light of late production of the Will. 7. The trial court has allowed the application permitting amendment of the written statement and raising of counter claim while observing that issues have not been framed and evidence has not commenced and while holding that no prejudice would be caused to the plaintiffs. The trial court has also observed that the plaintiffs in the present suit who were the defendant nos.1, 2 and 3 in the earlier suit for partition and not having sought for necessary relief in the earlier proceedings, present suit could be barred in the light of principle of Order II Rule 2. The trial court has also held that the proposed amendment raising the additional legal plea is necessary for effective adjudication of the matter. 8. Insofar as I.A.-2/2019 is concerned, the same has been filed to exclude the counter-claim filed by the first defendant invoking the provision of Order VIII Rule 6C of CPC. 9. It is contended that clubbing of the suit and counter-claim would create hardship and would result in confusion. 8. Insofar as I.A.-2/2019 is concerned, the same has been filed to exclude the counter-claim filed by the first defendant invoking the provision of Order VIII Rule 6C of CPC. 9. It is contended that clubbing of the suit and counter-claim would create hardship and would result in confusion. As the defendant is seeking possession by way of a mandatory injunction, same could be granted only where declaratory relief is sought for or if the defendant proves that the plaintiffs are in possession as tenants. In the absence of either seeking declaratory relief or proving that the plaintiffs are tenants, it would be appropriate to exclude the counter-claim and direct for separate adjudication by way fresh suit. 10. The defendant on the other hand has objected to the said application and contends that if the application is allowed, it would lead to multiplicity of proceedings and there is no necessity to file suit for possession or a declaratory suit as contended. The trial court has however, rejected the application while observing that if the suit and counter-claim are tried together, it would avoid multiplicity of proceedings and would not cause prejudice to either side. 11. The petitioner while assailing the impugned order whereby application under Order VI Rule 17 CPC had been dismissed, had reiterated the contentions of the objections filed to the said application before the trial court. 12. The petitioner has further contended that the impugned order is not a speaking order, and no detailed reasons are forthcoming and that the impugned order is contrary to the findings of the order passed on 21.05.2012 on I.A.Nos.2, 3 and 4. 13. It is also contended that the trial court ought to have noted that for the purpose of granting relief of mandatory injunction as sought for, the cloud surrounding the title was still to be adjudicated which ought to have been taken note of, to deny grant of mandatory injunction. It is further contended that the relief of mandatory injunction could not be granted as against other co-owners and that the counter-claim if permitted would change the nature of suit and cause of action. 14. It is further contended that the relief of mandatory injunction could not be granted as against other co-owners and that the counter-claim if permitted would change the nature of suit and cause of action. 14. The respondents on the other hand, have contended that the order ought not to be interfered with as there was no perversity, that the petitioner by filing application under Order VIII Rule 6C of CPC, has in effect given up claim to challenge the order passed under Order VI Rule 17 CPC, permitting raising of counter-claim. It is contended that the question of delay does not arise as though the written statement was filed on 12.09.2011, the records of the trial court was called for on 17.08.2012 in connection with the proceedings in MFA No.5489/2012, 5490/2012 and 5491/2012 filed against the order of the trial court passed on I.A.Nos.2 to 4. The records of the trial court were received back by the trial Court only 16.02.2019 and the application for amendment came to be filed on 07.03.2019. It is submitted that the application has been filed before framing of issues and the contentions on the merits of the amendment cannot be looked into at the time when application for amendment is being considered. It is further submitted that the relief of mandatory injunction as sought for is permissible as the same is a consequential relief that would follow if the suit of the plaintiff is dismissed. 15. It is submitted that the incorporation of six portions is only a reiteration of portions of the suit schedule property as indicated by the petitioners themselves. Accordingly, dismissal of the writ petition is sought. 16. Heard both the sides. 17. At the outset, it must be pointed out that the contention that the application for amendment has been filed after a delay of more than 08 years is to be rejected in light of the fact that though the written statement was filed 12.09.2011, as contended by the counsel for the first defendant, records were called for in MFA No. 5489/2012 and connected matters on 17.08.2012, and were received back by the trial court only on 16.02.2019 and application came to be filed on 07.03.2019. If that were to be so, the question of delay is well explained by the above dates. If that were to be so, the question of delay is well explained by the above dates. The counsel for the petitioner has relied on the judgments in [ (2008) 13 SCC 179 ] Bollepanda P. Poonacha and another v. K.M. Madapa and the case of Smt. Sabitri Nath and Ors. v. Smt. Sabitri Deb and Ors. reported in AIR 2010 Gauhati 169 , to advance the contention that assertion of a counter claim cannot be an absolute right and the question of delay would also be a relevant factor. 18. Such contention is liable to be rejected in light of the nature of counter claim sought for. The delay would not prejudice the plaintiff insofar as the relief of mandatory injunction, as the same is in the nature of relief that the defendant would be entitled to in the event of dismissal of the suit. Even otherwise, the explanation for delay in light of records being called for by this Court as discussed above would be a sufficient explanation. 19. As regards the legal position relating to the stage upto which counter-claim could be entertained is no longer res integra in light of position of law that the counter-claim could be filed any time before issues are framed as laid down in the case of Ashok Kumar K v. Wing CDR Surendra Agnihotri & Another dated 08.01.2020 in SLA (C) 23599/2018, which needs to be kept in mind. 20. It is also to be noted that the amendment of written statement is to be treated in a liberal manner as compared to the amendment of a plaint and in the present case, application having been filed prior to settlement of issues, question of delay leading to rejection of the application for raising of counter-claim by way of amendment does not arise. 21. As regards the contention that the relief of mandatory injunction in the nature of direction to the plaintiffs to hand over possession could not have been considered as there is a serious cloud over the title of the first defendant is also not a valid legal argument. It is to be noted that the question of issuing mandatory injunction would arise only consequent to the decision of the suit. It is to be noted that the question of issuing mandatory injunction would arise only consequent to the decision of the suit. In fact, the defendant has contended that the plaintiff is in permissive possession of the property and the question of issuing of mandatory injunction would only arise if the suit of the plaintiff is dismissed. 22. While considering an amendment application, it is settled law that the court need not enter into merits of the contentions in all cases. 23. Insofar as the contentions of the plaintiffs relating to impermissibility of claiming the relief of mandatory injunction against the co-owner, it must be noted that the claim of the first defendant to the rights is by reliance on the will dated 01.12.1969 bequeathing absolute rights to the defendant. Further, the claim for the relief of mandatory injunction is also on the premise that such relief would follow on the dismissal of the plaintiffs suit. However, more importantly while considering an amendment application, the Court need not go into the merits of the relief sought for. Accordingly, reliance is placed on the judgments reported in the case of Kochunju Nair v. Koshy Alexander and others reported in AIR 1999 SC 2272 and Bachan Singh v. Swaran Singh reported in AIR 2001 Punjab & Haryana 112 on the principle that there can be no order of injunction against a co-owner need not be adverted to. 24. In light of the broad scope of raising of counter-claim as envisaged under Order VIII Rule 6A of CPC, the amendment sought for by raising of counterclaim is, in fact, permissible. 25. The Apex Court in the case of Jag Mohan Chawla and another v. Dera Radha Swami, Satsang and others reported in AIR 1996 SC 2222 has gone to the extent of holding the words 'any right or claim in respect of a cause of action accruing with the defendant would show that the cause of action from which counter claim arises need not necessarily arise from or have any nexus with the cause of action'. This position has been followed and reiterated in the case of Cottage Industries Exposition Ltd., v. Smt. Bindu Neelakanta [ILR 2015 Kar 4775] . In light of the same, the relief of mandatory injunction sought for which would be consequent upon dismissal of the suit of the plaintiff cannot be held to be barred. This position has been followed and reiterated in the case of Cottage Industries Exposition Ltd., v. Smt. Bindu Neelakanta [ILR 2015 Kar 4775] . In light of the same, the relief of mandatory injunction sought for which would be consequent upon dismissal of the suit of the plaintiff cannot be held to be barred. As the counter-claim relates to the issues involved in the suit, multiplicity of suits could be avoided by permitting adjudication of the counter-claim in the present proceedings. In fact, this court in the case of Cottage Industries (supra) has held that the counterclaim need not be connected with the cause of action and that there was no need to relegate the defendant to file an other suit. 26. It is to be noted that the order of the trial court does not result in any prejudice to any party as the merits of the pleadings permitted to be included by way of amendment are still matters open for adjudication after the plaintiff is afforded an opportunity to put forth his defence to the counterclaim. 27. It is also to be noted that the order passed is appropriate in the facts and circumstances of the case and there is no procedural irregularity so as to permit interference with the impugned order under Article 227 of the Constitution of India. 28. Insofar as the petition relating to exclusion of counterclaim in W.P.No.30526/2019, this court does not find any case made out for exclusion of the counterclaim and in fact, precious time of the court will be saved if the counterclaim which in fact is connected to the cause of action of the suit is permitted to be tried by the trial court and accordingly, the said writ petitions are rejected. 29. It is however clarified that notwithstanding the dismissal of writ petitions, the observations made by the trial court in the impugned orders, or by this court in the present order, or observations made by the trial court in its orders passed on other interlocutory applications as referred to by the petitioners are to be construed to be observations made for the purpose of disposing of the interlocutory applications and is not to be treated as conclusive and binding on the trial court as regards the matters to be finally adjudicated in the trial. The trial court to expedite trial of the suit keeping in mind directions earlier passed in MFA Nos.5489/2012 c/w 5490/2012 & 5491/2012 vide order dated 11.10.2018.