1 908-wp-8002-2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8002 OF 2024 Nanibai Umaji Jagtap Died And Others VERSUS Seetabai Mahadu Jagtap Died Through Lrs Kadubai Popat Dabhade And Another ... Mr. V. R. Dhorde, Advocate for the Petitioners Mr. S. S. Chapalgaonkar, Advocate for Respondent nos.1 and 2 ….. CORAM : AJIT B. KADETHANKAR, J. DATED : 29TH SEPTEMBER, 2026 P.C. :- . Heard. 2. Feeling aggrieved by the order dated 20.01.2024 passed by 3rd Joint Civil Judge Junior Division, Rahata on an application below Exhibit-225 in Regular Civil Suit No.26 of 2006, the legal representatives of original defendant are before this Court. 3. In 2006, the plaintiffs/respondents instituted the suit against the predecessors of the present petitioners seeking removal of encroachment and possession of the encroached portion. The suit was defended by the defendants who were the predecessors of the petitioners. After hearing the parties, 2026:BHC-AUG:45807 2 908-wp-8002-2024 the Trial Court pleased to dismiss the suit. The plaintiffs carried the said dismissal in Appeal vide Regular Civil Appeal No.73 of 2002 before the District Court, Kopargaon. After hearing both the sides, the First Appellate Court allowed the appeal vide its judgment and order dated 20.07.2005 and remanded the matter back to the Trial Court. The District Court however rendered following additional directions: 4. The trial court is directed to appoint cadastral surveyor from T.I.L.R. Kopargaon as court commissioner for the purpose of commission as per the prayer in ex.15 of appeal. 5. After report of court commissioner is received, the trial court is directed to decide the suit afresh, by giving an opportunity to respective parties to lead evidence in support of their respective claim. It is made clear that, all points are left open which are involved in the present suit. 4. The defendants challenged the said judgment and order in this Court vide Appeal From Order No.05 of 2006. After hearing the parties, this Court vide judgment and order dated 08.01.2007 allowed the appeal partly and clarified that the Trial Court shall appoint Court Commissioner as per the directions of the First Appellate Court and after evidence of the Court Commissioner is over, the matter shall be referred 3 908-wp-8002-2024 to the First Appellate Court to decide it afresh on the basis of the evidence of the Court Commissioner. 5. Consequently, the matter again reached to the Trial Court. In the meantime, the original defendant died and the petitioners herein came to be impleaded as legal representatives of the original defendant. Pertinently, the petitioners also filed their written statement and instituted their counter claim. The plaintiffs even filed written statement to the counter claim. At this juncture, the plaintiffs filed an application at Exhibit-225 to exclude the hearing of the counter claim from the suit in terms of Order VIII Rule 6C of the Civil Procedure Code. The said application came to be allowed by the Trial Court after hearing both the parties. As such, the legal representatives of the original defendants are before this Court assailing the order dated 20.01.2024. 6. Mr. V. R. Dhorde, learned Advocate for the petitioners vehemently argued that the counter claim has to be decided by the Court on its own merits. He would submit that the respondents have even filed their written statement to their counter claim. That, considering the nature of the subject matter of the suit as also of the counter claim, it is appropriate 4 908-wp-8002-2024 that both the proceedings are dealt by the Trial Court together. He would submit that in ordinary course, the petitioner would not have opposed such application; however considering the fact as already noted, the Trial Court ought not to have excluded the counter claim from the suit proceedings. 7. That, the entire endeavor of the petitioners is to facilitate convenient hearing of both the controversies considering the similarity of the facts and the common nature of the subject matter of dispute. Mr. Dhorde learned Advocate for the petitioners thus prays to allow the Writ Petition. 8. Mr. S. S. Chapalgaonkar, learned Advocate for the respondents would advocate the findings recorded by the Trial Court. He would submit that the remand was strictly as per the directions given by this Court in the Appeal From Order. He would submit that there is no error in the findings recorded by the Trial Court. 9. I have heard both the sides extensively. Apparently, the Civil Suit before the Trial Court in its second round is only in the result of the order passed by this Court in Appeal From Order. This Court in its judgment dated 08.01.2007 at 5 908-wp-8002-2024 paragraph no.7 has given clear directions to the Trial Court thereby remitting back the matter only for the purpose of taking on record the evidence of Court Commissioner. It is further directed that the Trial Court was entrusted with a job only to take on record evidence of TILR as Court Commissioner and to refer the matter to the First Appellate Court to decide it afresh. In terms of this, I find that the inability expressed by the Trial Court at paragraph no.8 of its order cannot be said to be incorrect or unjustifiable. 10. Suffice to note, the counter claim is an independent suit to which the plaintiffs have even filed the written statement. This Court is quite aware that the defendants can very well agitate their counter claim and their prayers made therein with their independent evidence and merits. What the Trial Court has done is a procedure under Order VIII Rule 6C of the Civil Procedure Code which merely excludes or segregates the counter claim from the suit in the peculiar facts of the case. Certainly it neither damages the merit of the counter claim nor excludes the defendants from proving their counter claim on its own merits. 6 908-wp-8002-2024 11. In view of the above, the impugned order dated 20.01.2024 need not to be interfered in the Writ Petition. To clarify, the defendants may contest and prove their counter claim on its own merits. 12. Writ Petition stands dismissed. All contentions as permissible in law are kept open. ( AJIT B. KADETHANKAR, J. ) Rushikesh/2026