important point
A counter-claim may be filed in respect of any right or claim, the cause of action therefor, however, must accrue either before or after the filing of the suit but before the defendant has raised his defence.

judgment

S.B. Sinha, J. —

1. Leave granted.

2. Whether a counter claim is permissible to be filed after filing of a written statement, is the core question involved herein.

3.Appellant filed a suit against the respondent claiming title and possession over the property in suit. Their names were mutated in the revenue record of rights. Respondents had filed a suit against the appellant which was marked as O.S. No. 67 of 1996. An order of interim injunction was passed therein on the premise that he under the garb of ex-parte interim injunction started making attempts to interfere with the possession of the appellant in the scheduled properties.

4.O.S. No. 54 of 1997 was filed in the Court of Civil Judge, Senior Division at Virajpet on 19.2.1997. Respondent filed a written statement on 21.3.1997 contending that he had purchased the said properties in terms of an order passed by the Assistant Registrar of Cooperative Societies, Kodagu, Madikeri.

5. On or about 4.1.2006, inter alia on the premise that the plaintiffs have dis-possessed the respondents in the year 1998, an application for leave to file counter claim was filed. In the said counter claim, it was contended that the land bearing Survey No. 61/1 had fallen to his share in a partition of the family properties in 1980 and 1986 and the remaining land was purchased by him in a public auction. The cause of action for filing the said counter claim was said to have arisen on 19.2.1997, when the suit was filed and in the end of summer of 1998 when the plaintiff tresspassed and encroached upon the lands belonging to them. In the application for amendment of the written statement, a prayer was made for passing a decree of recovery of possession of the suit land stating;

“Pass a judgment and decree against the plaintiffs declaring that the defendant is the absolute owner of the written statement schedule ‘A’ properties and direct the plaintiffs to vacate and deliver possession of the schedule ‘B’ properties to the defendant and the same be ordered to be delivered by a fixed date and on default; the same shall be delivered to the defendant by the due process of the court..”

The said application has been allowed by the learned Civil Judge by an order dated 12.10.2006, opining that the cause of action for filing the said counter claim arose prior to filing of the written statement.

Revision application filed by the appellant has been dismissed by the High Court by reason of the impugned judgment.

6.Mr. Dayan Krishnan, learned counsel appearing on behalf of the appellant submitted that filing of a counter claim where cause of action arose after filing of the written statement is impermissible under Order 8 Rule 6A of the Code of Civil Procedure.

7.Mr. Girish Ananthamurthy, the learned counsel appearing on behalf of the respondent, however, urged that with a view to avoid unnecessary litigation, the view taken by the learned Civil Judge as also the High Court cannot be said to be wholly impermissible in law.

8.Order VIII Rule 6A of the Code of Civil Procedure reads as 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 time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not;(Emphasis supplied)

9.Order VI Rule 17 of the Code provides for amendment of pleadings. Subject of course to the applicability of the proviso appended thereto (which is not applicable in the instant case), such applications ordinarily are required to be considered liberally. It is also not much in doubt or dispute that amendment of written statement deserves more liberal consideration than an app