1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7147/2008 Prabhakar Hindurao Altekar Petitioner Vs. Dynandeo @ Tukaram Hindurao Respondents and others Mr.Rahul Walvekar for the petitioner Mr.Amit orkar for the respondent CORAM : MRS.MRIDULA BHATKAR,J. RESERVED ON : 12th JUNE,2009 PRONOUNCED : 25th JUNE,2009. J U D G M E N T . Heard finally by consent. 2] This petition is filed against the order passed by the learned Civil Judge,J.D.,Kolhapur dated 28/7/2008 refusing the petitioner i.e.original defendant to file the counter claim pursuant to the amended plaint. 3] The learned counsel for the petitioner has submitted that the learned Trial Court has committed error in not allowing the counter claim . It is contended by him that the petitioner (defendant) has filed the written statement. Thereafter the respondent (plaintiff) amended the plaint three times i.e.at Exh.28,38 and 41 and again 4th time he amended 2 the plaint by an application Exh.62 dated 1/8/2005 .The petitioner thereafter filed additional written statement on 21/11/2005 alongwith the counter claim . He has submitted that the counter claim can be filed under Order 8 Rule 6-A of the Code of Civil Procedure as the cause of action arose in the amended plaint itself. In support of his submission he has relied upon (Datta Bandu Sadale and Others.Vs. Sridhar Payagonda Patil and others ) , reported in A.I.R.1992,Bombay, 422. 3] The learned counsel appearing for the respondent has submitted that the counter claim can be allowed before the defendant had delivered his defence. It is further submitted that the cause of action in the counter claim should have been arisen before filing of the written statement. In the present suit the petitioner has already delivered his defence in the written statement and the cause of action accrued was not before that but by way of amendment of the plaint. In support of his submissions he relied upon ruling (Mahendra Kumar and another Vs.State of Madhya Pradesh and others) reported in AIR,1987 Supreme Court,1395 and further relied upon (Shri.Ganu Kisna Buradkar Vs.Manik Kisna Buradkar & Anr.),reported in 2003(4) ALL M.R., 239. 4] The counter claim is submitted and accepted under Order 8 Rule 6-A of the Code of Civil Procedure. The Rule says , a defendant by way of counter claim putforth his right or claim in respect of cause of action accrued to the defendant against the plaintiff. However, in the later part of the said Rule 3 a rider in respect of the time of filing the counter claim is incorporated which states that - “ either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired “ 5] Thus, it can be filed before delivery of the defence or before the period within which the defence is to be filed has expired. When the specific time limit is prescribed under the Rule then the counter claim which goes beyond these two conditions cannot be accepted. In the present case the written statement was submitted by the original defendant in the year 1990 at Exh.14 and thereafter defendant no.2 has also submitted his written statement at Exh.40 on 17/12/2002 after the death of original defendant Bayakkabai . Thus now the counter claim which the petitioner intends to file is beyond these two conditions of the limitations as contemplated under Rule 6-A of the Code of Civil Procedure. Hence the petition is dismissed with no order as to costs. (Mrs.Mridula Bhatkar,J.)