IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6744 of 2011 (O&M) Date of decision: November 04, 2011 M/s Guru Nanak Traders Commission Agents .. Petitioner Vs. M/s Pritam Rice & General Mills & others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. B.R. Mahajan, Advocate for the petitioner. A.N. Jindal, J The petitioner has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 26.9.2011 (Annexure P1) passed by the trial court allowing the application under Order VI Rule 17 CPC for amendment of written statement. From perusal of the impugned order it reveals that the court has allowed the defendants to set up a counter claim at the stage when the trial had already commenced and the plaintiff had already concluded his evidence and the case was fixed for the evidence of the defendant. The court appears to have not sensitized the question as to at what stage the counter claim is to be filed. Order VIII Rule 6-A CPC deals with filing of the counter claim. The provision germane in the context for consideration in order VIII Rule 6-A CPC reads as under :- “6-A. (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter- claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering the defence has expired, whether such counter-claim is in the nature of a claim for damages or not : Provided that such counter claim shall not exceed the Civil Revision No. 6744 of 2011 -2- pecuniary limits of the jurisdiction of the court. (2) Such counter claim shall have the same effect as a cross- suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court; (4) The counter-claim shall be treated as a plaint and governed by rules applicable to plaints.” The stage with regard to filing of the counter claim has been discussed in detail in the judgment delivered in case N. Eshwara Prasad v. Margadarshi Chit Fund Limited, Warangal 2004 (4) RCR (Civil) 158 wherein it was observed as under :- “16. Turning to the facts in the instant case, the defendants 2 to 5 filed their written statement resisting the suit; issues were framed by the Court, the trial in fact had begun, the plaintiff led evidence and after closure of the evidence of the plaintiff, the suit had been coming up for the evidence of the defendants. Notwithstanding the fact that the claim by then was within the period of limitation, but the stage at which they sought to file is belated and, therefore, the defendants cannot be permitted to file the counter-claim at this stage....” As a matter of fact, Order VIII Rule 6-A of CPC itself indicates that the counter claim has to be filed before delivering the defence or before time limited for delivering the defence has expired. The words “defence is delivered” used herein could be refused to the filing of the written statement and not after plaintiff closes his evidence. However, without further entering into controversy into the matter, I leave it to the court to re-examine the issue whether the counter claim could be filed at any stage of the suit. Resultantly, this revision petition is accepted, impugned order is set aside and the trial court is directed to re-examine the matter with regard to amendment and insertion of counter-claim and also re-decide the application afresh. Civil Revision No. 6744 of 2011 -3- This petition is allowed without issuing notice to the respondents with a view to impart complete justice to the parties and to save the huge expenses, which may be incurred by the respondents as also in order to avoid unnecessary delay in adjudication of the matter. Still, if dissatisfied, the respondents may move to this court for recalling this order. November 04, 2011 (A.N. Jindal) deepak Judge