IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1633 of 2006 RANJIT KUMAR SHRIVASTAVA S/O LATE RAM BILAS PRASAD RESIDENT OF VILLAGE – BAIRIYA P.S. – AHIYAPUR, P.O. KOLHUA PAIGAMBARPUR, DISTRICT MUZAFFARPUR, AT PRESENT RESIDING AT A-52, C.R. PARK, NEW DELHI – 19 ---------PETITIONER-PLAINTIFF Versus 1. JANKI DEVI W/O LATE RAM BILASH PRASAD 2. RAJIV RANJAN SINHA S/O LATE RAM BILASH PRASAD 3. PRABHA SHRIVASTAVA W/O LATE ARUN KUMAR SHRIVASTAVA 4. PANKAJ SHRIVASTAVA 5. VIKASH SHRIVASTAVA NO. 4 AND 5 ARE SONS OF LATE ARUN KUMAR SRIVASTAVA ALL ARE RESIDENTS OF VILLAGE BAIRIYA, P.S. – AHIYAPUR, P.O. – KOLHUA PAIGAMBAR, DISTRICT MUZAFFARPUR, AT PRESENT DEFENDANT NO. -2 RESIDING AT – F-38 ARMAPUR ESTATE, KANPUR – 9 ------ OPPOSITE PARTIES-DEFENDANTS. ----------- For the petitioner : Mr. Arun Kumar Prasad, Advocate. For the opposite parties : Mr. Vivek Prasad, Advocate. No. 3 to 5. ---------- 4. 5/3/2009 Heard Mr. Arun Kumar Prasad, learned counsel for the petitioner and Mr. Vivek Prasad, learned counsel for the opposite parties No. 3 to 5. The petitioner-plaintiff, aggrieved by the order dated 22.7.2006 passed by the Sub Judge, 3rd, Muzaffarpur in partition suit No. 331 of 2005 whereby a petition under Order VI, Rule 17 CPC filed on behalf of the defendants No. 3 to 5 to set up counter claim has been allowed, has preferred this Civil Revision application. Learned counsel for the petitioner-plaintiff submits that the prayer of the opposite parties No. 3 to 5 for setting up a counter claim after filing of written statement ought not have been - 2 - allowed by the court below as it is apparent from the provisions under Order-VIII, Rule 6-A of the CPC itself that a right to set off by way of counter claim against the plaintiff could only be allowed before the defendant had delivered his defence or before the time limited for delivering his defence has expired. Learned counsel for the opposite parties No. 3 to 5 submits that the bare perusal of the aforesaid provision discloses that the counter claim could be set up even after filing of written statement by the defendants if the same is necessary in the interest of justice. According to him, Rule 6-A of under Order-VIII provides only to the extent that the cause of action for setting up of such counter claim shall either be before or after filing of the suit but definitely before the defendant has delivered his defence. In support of his submission, learned counsel relies upon a decision of the Apex Court in Mahendra Kumar and another Vrs. State of Madhya Pradesh and others, reported in AIR 1987 Supreme Court 1395 wherein the Supreme Court has held that Rule 6A(1) of the Order-VIII, on the face of it, does not bar the filing of counter claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter claim could be set up, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired. The relevant passage of the aforesaid decision is as under:- - 3 - “15. The next point that remains to be considered is whether R.6A(1) of O.VIII, Civil P.C. bars the filing of a counter- claim after the filing of a written statement. This point need not detain us long, for R.6A(1) does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement . What is laid down under R.6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of R. 6A(1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from R. 6A(1), Civil P.C. As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter claim was, therefore, quite maintainable. xx xx xx xx xx”. I find force into the submissions raised on behalf of the opposite parties No. 3 to 5. It would be apt to refer to another decision of the Supreme Court rendered in Ramesh Chand Ardawatiya Vrs. Anil Panjwani reported in (2003) 7 Supreme Court Cases 350. The Apex Court in the aforesaid decision, relying upon the case of Mahendra Kumar and Another Vrs. State of Madhya Pradesh and Others (supra), has held that only requirement of Rule 6-A(1) is that the cause of action for the counter claim should have arisen before the filing of the written statement. The relevant passage of the aforesaid decision is - 4 - quoted as under:- “30. In Mahendra Kumar Case counter-claim was sought to be brought on record after the filing of a written statement which was turned down by the trial court upon a misreading of Rule 6-A(1) that the counter-claim filed after the filing of the written statement was ipso facto not maintainable. This Court upset such erroneous view by clarifying the legal position, apparent on a bare reading of the relevant provision that the only requirement of Rule 6-A(1) was that the cause of action for the counter-claim should have arisen before the filing of the written statement and if that was so, the counter-claim was not simply excluded. In Shanti Rani Das Dewanjee case the brief order of this Court deals with the situation that the right to file a counter-claim does not come to an end by filing of the written statement once. xx xx xx xx xx xx” Learned counsel for the petitioner has not been able to demonstrate before this Court that the relevant cause of action has arisen after filing of the written statement by the defendant. In the partition suit concerned, the defendant simply wants to include certain lands for partition which has been left out by the plaintiff. In view of the aforesaid, this Court does not find any jurisdictional error in the order under challenge. As a result, this Civil Revision is dismissed. S. Ali (Dr. Ravi Ranjan, J.)