IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1055 of 2011 Shree Ramesh Prasad @ Ramesh Prasad, son of Sri Kedar Prasad, Resident of village and P.O. and P.S. Tekari, District- Gaya, at present resident of village- Goh, P.O. and P.S.- Goh, District- Aurangabad. . . . . . . Petitioner. Versus 1. Krishna Niwas Upadhyay, son of Shriee Kapildeo Upadhayay, resident of village- Goh, P.O. and P.S.- Goh, District- Aurangabad. 2. The State of Bihar through Collector, Aurangabad. 3. S.D.M. Daudnagar, At and P.O. and P.S. Daudnagar, District- Aurangabad. 4. Anchal Adhikari Goh, P.O. and P.S.- Goh, District- Aurangabad. 5. The Officer-in-charge, Goh, P.S.- Goh, District- Aurangabad. 6. Sri Ashok Kumar Pandey, son of Late Raghunath Pandey, Resident of village and P.O. and P.S. Goh, District- Aurangabad. . . . . . Respondents. For the Petitioner : Mr. Raj Nandan Prasad, Advocate. For the State : Mr. Anupa Nand Jha, AC to SC 6. ----------- 2/ 15.07.2011 The petitioner is aggrieved by order dated 09.09.2009, passed by Sri B.K. Rail, learned Munsif, Daudnagar, Aurangabad in Title Suit no. 13 of 2002 / 28 of 2009, whereby petition dated 07.12.2007 filed by defendant no.1 under Order VIII Rules 6 A and 6 B for a counter claim has been allowed. The plaintiff-petitioner has challenged the filing of counter claim on two grounds. He submits that the counter claim has been filed belatedly much after filing of the written statement of the defendant on 24.11.2003. He further submits that Order VIII Rule 6 A states that the cause of action in appeal must be in respect of cause, for which the plaintiff has filed the suit. He submits that Rule 6 B of Order VIII states that where any defendant seek to rely upon any ground as supporting a right of counter claim, he has to state these specifically in counter claim. It appears from the impugned order of the learned trial 2 court that while opposing the prayer of allowing counter claim, the plaintiff took only one point that counter claim is permissible in only money suit. The trial court rightly rejected the contention that counter claim is limited only to money suit. Though the Court is not obliged to consider other points, which was not raised by him in the trial court, still this Court would like to consider those points as well in this writ application. The first point raised by the petitioner is that the counter claim has been filed after 4 years of filing of written statement. For some reason or the other, the issues were not framed, as other defendants had not filed written statement. The law permits of filing of counter claim any time before framing of issue. The defendant no.1 in his petition under Order VIII Rule 6 A and 6 B stated that plaintiff 5 years back constructed a house in plot no.2675 bearing khata no. 94 and in the process also encroached upon the land of the defendant falling in the said plot. The defendant stated in his petition that the plaintiff has grabbed 16 decimals of his land. In paragraph 3 he has stated that he would file all the documents with respect to khata no.94, plot no. 2675. In paragraph 4 it is stated that from the date of encroachment the plaintiff has been saying that he would compensate him monetarily, failing which he would remove the said encroachment. Thus, I find that there is some reason for belated filing of the counter claim and the issues are co-related. Thus the trial court has rightly allowed the counter claim. The defendant 3 would pay the necessary court fees on counter claims. As the suit is of the year 2002, the learned trial court would frame issues not later than two months from the date of receipt of a copy of this order and would expeditiously proceed with the suit. With the aforesaid observation, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)