ORDER

Leave granted.

Aggrieved by judgment and order dated 24.1.2012 passed by the High Court of Patna in C.W.J. Case No. 12465 of 2010, the respondents therein preferred this appeal.

2. The appellants herein are the plaintiffs in Title suit No. 150 of 2001 on the file of the Sub-Judge, Gopalganj, Bihar. The suit is for partition of the property of a joint family consisting of the plaintiffs and the defendants.

3. The admitted facts are: the suit was filed on 18.4.2001. The defendants, i.e., the respondents herein filed a written statement on 5.10.2001. The suit went for trial. The evidence of the appellant's side was closed on 26.8.2009. Evidence of the respondent's side was closed on 26.10.2009. Thereafter, the suit was posted for arguments to be heard on 3.12.2009. On 14.12.2009, it appears the defendant filed an application with the prayer as follows :-

"Therefore, it is prayed that the issue of partial partition may kindly be framed among the issues framed in view to the facts mentioned above."

4. Subsequently, the respondents filed another application on 8.3.2010 with the prayer to amend the written statement thereby setting up a counter claim. The prayer in the said application is as follows:-

"(1)...decree may kindly be passed by the Court with regard to 1/3 share in counter claim as per Schedule No. 6 of the written statement and a separate possession be granted after partitioning the 1/3 share of the defendants through officials of the Court.

(2) after Schedule No. 5 of the written statement the Schedule No. 6 be inserted as hereunder."

5. The said application was dismissed by the trial Court by an order dated 14.5.2010. Aggrieved by the same, the respondents carried the matter to the High Court invoking the jurisdiction under Article 227 of the Constitution of India. By the impugned order, the High Court allowed the revision setting aside the order of the trial Court dated 14.5.2010 consequently allowing an application dated 8.3.2010 of the respondents herein.

Hence the appeal.

6. It is submitted by the learned counsel for the appellants that under Order VIII Rule 6-A *[1] of the Code of Civil Procedure, 1908, a counter claim could be made before the defendant has delivered his evidence or before the time limited for delivering his evidence has expired. A belated application seeking to introduce a counter claim by the defendant, after the trial of the entire suit is concluded, is impermissible and the High Court grossly erred in allowing the application for counter claim.

*[1 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 :

Provided that such counter-claim shall not exceed the 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 the rules applicable to the plaints.]

7. On the other hand, learned counsel for the respondents argued that under Order VIII Rule 9, the trial Court has a discretion to allow the counter claim at any stage. It is further submitted that in the case on hand, the issues came to be settled only on 26.10.2009. Therefore, the application dated 8.3.2010 seeking an amendment of the written statement with the prayer of counter clai