IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.530 of 2011 Shambhu Prasad Gupta Versus Bhaglu Sao & Ors ----------- 3 1.7.2011 The petitioner is aggrieved by order dated 8.10.2009 passed by the Sub Jude V, Aurangabad in Title Suit No.150 of 2005 by which the trial court permitted the Intervener defendant nos.3 and 4 to file counter claim under Order VIII Rule 6A of the C.P.C. and admitted the same for final hearing. The plaintiff filed a Title Suit No.160/05 in the Court of the Additional Sub Judge, Aurangabad praying to declare that he is owner of the suit property. He further prays that four impugned sale deeds referred to in the plaint are sham, fictitious and did not give any right and title to any one. He is also claiming title on the basis of registered deed of gift dated 15.4.1978 executed by his uncle Sheo Sah. The defendant nos.3 and 4 filed a petition under Order 1 Rule 10 C.P.C. for being added as necessary party and claimed to be having right and title on the suit property. They controverted the claim of the plaintiff of having right, title and interest over the suit property. They stated that the original defendants have not even filed written statement in the suit. The trial court after hearing the parties allowed the petition of the intervener defendants under Order 1 Rule 10 C.P.C. for being added as defendant nos.3 and 4. On 13.6.2006 the intervener defendants filed their counter-claim under Order VIII Rule 6A 2 C.P.C. The plaintiff-petitioner filed rejoinder to the counter- claim on 2.2.2007. The plaintiff, who is petitioner before me, submits that the counter-claim filed by the intervener defendant nos.3 and 4 was not maintainable as the same was not filed along with the written statement. He submits that as per Order VIII Rule 6A a counter affidavit is to be filed before the defendant has delivered “his defence” or before the time limited for delivering his defence has expired. In order to appreciate the submission of learned counsel for the petitioner, it is relevant to quote Order VIII Rule 6A herein under: “6A. Counter-claim by defendant- (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 claim limited for delivering his 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 pecuniary limits of the jurisdiction of the court (2) xx xx xx (3) xx xx xx (4) xx xx xx At the first sight it would appear from perusal of the provision that a counter-claim has to be filed before the defendant has filed his written statement or before the time period fixed for filing of such written statement. The courts have given liberal construction to the term “before the defendant has delivered his defence” and have clarified that counter-claim can be filed any time before framing of the issues. The object of 3 permitting a counter-claim is to resolve litigation between the parties in one go and in one case itself wherever possible, to avoid multiplicity of proceedings between the parties. Though the counter-claim desirably should be filed along with the written statement nonetheless it can be filed prior to framing of the issue or hearing of the suit. In this respect, the learned trial court has rightly relied upon a decision of this court in the case of Ranjit Singh Vs Mr. Gulam Rabbani @ Gulam Ahmad & Ors, reported 2006(4) PLJR 126. Thus I find no merit in the contention of learned counsel for the petitioner that the counter- claim filed by the defendant nos.3 and 4 was barred under Order VIII Rule 6A CPC. The petitioner then contended that the intervener defendant nos.3 and 4 had filed an application for withdrawing the earlier counter-claim and then had filed the instant counter- claim which would also not be permissible under law. The contention of the petitioner is fallacious and fit to be rejected. Order VIII Rule 9 provides for a subsequent pleading. However, such pleading can be presented only with the leave of the court any time before framing of the issue. It was permissible for the defendant to file a counter-claim any time before the framing of issue after withdrawing the earlier counter claim. Further more the plaintiff has not challenged the aforesaid issue either before the trial court or made any pleadings to that effect before this court. Thus on this score the petitioner does not succeed. 4 KHAN The petitioner next contended that the valuation of the counter-claim has not been mentioned and no court fee has been paid by the defendant nos.3 and 4. The defendants are required to give the valuation of the counter-claim in their petition and to this extent I am in agreement with the submissions made by learned counsel for the petitioner. However, non mentioning of valuation in the counter-claim would not go to the root of the matter so as to render the order illegal. The intervener defendant nos.3 and 4 would rectify this mistake within two weeks from the date of receipt of a copy of this order and the trial court should see that the required court fee is paid thereof. With the aforesaid observations and directions, this writ petition stands disposed of. (S.P. Singh,J)