1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3256 of 2010 Sau. Aditi Anant Keskar. r Age 26 years, Occ. Household R/o. C/o. Shashimkant Rangnath Kulkarni At Post Ashti, Taluka Ashti, District Beed. ,,Petitioner/Ori. Defendant Versus Anant S/o. Prakashrao Keskar Age 30 years, Occ. Service R/o. Paranda, Taluka Paranda Dist. Osmanabad. Respondent Respondent/Orig. Plaintiff. Mr. N.C. Garud, Advocate for the petitioner. Mr. S.Y. Mahajan, Advocate for the respondent. CORAM : R. M. BORDE, J. DATE : 19th April, 2010. ORAL JUDGMENT: 1] Heard respective counsel appearing for the parties. Rule. with the consent of parties, petition is taken up for final hearing at the admission stage. 2] The petitioner herein raises exception to the order dated 24/2/2010 passed by the trial court, below Exhibit 36 and 37 in Hindu Marriage Petition No. 94/2007. The respondent husband has filed Hindu Marriage Petition No. 94/2007, claiming a decree of nullity and alternatively for a decree of dissolution of marriage under Section 13B of the Hindu 2 Marriage Act. On presentation of the petition the respondent (petitioner herein) wife caused appearance and presented her written statement. The respondent in her written statement , apart from denying contentions raised by the husband in the petition, has contended that she is willing to reside with the husband and continue the matrimonial relations with the husband. It is contended that some mediators on her behalf have tried to settle the differences between the husband and wife, by approaching the husband's family on 22/10/2006 and 8/4/2007. However, the efforts for reconciliation have been proved to be futile. The defendant has also requested the court to pass order in respect of restitution of conjugal rights as contemplated by Section 9 of the Hindu Marriage Act. 3] The trial court has framed issues in the matter on 19th August, 2009. The defendant requested the trial court to frame an issue in respect of her claim raised under Section 9 of the Hindu Marriage Act. The defendant also tendered an application Exhibit 37 requesting the court to treat the contentions raised by her in the written statement, as a counter claim and conduct the trial in accordance with the provisions of law. Both the applications tendered by the defendant were turned down by the trial court in view of the order passed on 24/3/2010. 4] I have perused both the orders passed by the trial court. It is the contention raised by the petitioner that the contents raised in the written statement are not in conformity with the provisions of Rule 6A of Order 8 of C.P.C. The accrual of cause of action stated by the defendant in the plaint is earlier to the occurrence of cause, as has been stated by the petitioner (husband) in his petition presented under Section 13 of the Hindu Marriage Act. It is contended that the contentions raised in the written statement 3 cannot be treated as a counter claim under Rule 6A of Order 8. Rule 6A of order 8, prescribes that the defendant can present a counter claim against the claim of the plaintiff regarding any right or claim in respect of cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time fixed for delivery of his defence has expired. It is contended that as the accrual of cause of action, as has been stated by the defendant, is prior to the accrual of cause of action as stated by the petitioner in the application, the claim raised in the written statement, do not come within the purview of Rule 6A of Order 8. 5] On perusal of the written statement, it transpires that the defendant has stated that there were attempt of mediation by third party, or by the well wishers of the husband and attempts were made on 25/10/2006 but those were found to be futile. This accrual of cause as stated in the written statement, is after the accrual of cause stated by the petitioner in the petition presented under Section 13B of the Act. Even otherwise, the entitlement of the defendant to present the counter claim in respect of cause of action accruing to the defendant before the defendant has delivered his defence or before the time limit for delivering his defence has expired, has been interpreted by this court, in number of judgments. Reliance can be placed on the judgment reported in 2002(3) All M.R. 809 “Shaikh Ibrahim & another Vs. Shahida Bi and others”, wherein, the learned Single Judge of this court has observed thus :- “Here, the learned Civil Judge has some misconception with respect to delivery of defence by the Defendants. 4 He is under the impression that delivery of defence means leading the evidence in the suit. However, he has altogether lost sight of the important thing that entire Order VIII relates to written statement, set off and counter-claim. So, this is the preliminary stage with respect to the suit coming before the Court. There are other stages such as production of documents, inspection of documents, framing of issues and then actual leading evidence by the parties on the basis of issues framed. What is contemplated under Order VIII, Rule 6-A is that the written statement which is to be filed by the defendant to make out his case with respect to the claims made by the plaintiffs. The delivery of defence does not mean leading oral evidence in the matter. It only means submitting the written statement by the defendant. . The provision further contemplates that the defendant can make a counter-claim but then he has to prefer the counter-claim at the time of filing of the written statement. If the cause of action for claiming the counter claim arises before the filing of the written statement. That further means that the defendant can make a counter-claim if in certain cases the cause of action has arisen after filing of written statement, even after filing of the written statement. The learned Civil 5 Judge has totally misinterpreted this provision and has held that as the defendant had not led the evidence n this matter, he could amend the written statement by claiming counter-claim. The counter-claim has to be made only with respect to the cause of action as explained above.”. 6] In the instant matter, cause of action as stated by the defendant in the written statement for requesting the court to grant relief under Section 9 of the Hindu Marriage Act has accrued before the period limited for delivering defence of the defendant has expired. In my opinion, it was not at all necessary for the defendant to tender any objection at Exhibit 37. The defendant has filed the counter claim alongwith the written statement and contentions raised are in conformity with Rule 6A of Order 8 of C.P.C. The trial court is, therefore, required to consider the counter claim raised by the defendant. The trial court also shall have to frame an issue based on the pleadings claimed by the defendant. 7] The counsel for respondent contends that if the contentions raised in the written statement and request made by the defendant is required to be considered as counter claim, the respondent may be given a further opportunity to tender his reply to the written statement. Considering the request made by the respondent/husband i.e. original petitioner in Hindu Marriage Petition No. 94/2007, to present his reply to the contentions raised by the defendant in the written statement, the respondent is permitted to file reply to the contentions in the written statement. Reply shall be tendered within 8 weeks from today. 6 8] In this view of the matter, the writ petition deserves to be allowed the same is accordingly allowed. The impugned order dated 24/2/2010 passed below Exhibit 36 and 37 in Hindu Marriage Petition No. 94/2007 is quashed and set aside. The trial court is directed to frame the necessary issue as prayed for by the defendant and consider the counter claim raised by the defendant with his written statement, in accordance with law. Rule is made absolute accordingly with no orders as to costs. Considering the pendency of the petition since 2007, the trial court is directed to expeditiously decide the petition, preferably by the end of the year 2010. grt/- ( R. M. BORDE) JUDGE.