( 1 ) DESPITE service of notice, none appears for the respondent. Heard the learned counsel for the appellant.

( 2 ) THIS Appeal Suit is directed against the common judgment and decree, dated 23-8-1995, passed by the Additional subordinate Judge, Ranga Reddy District at saroornagar, Hyderabad, only insofar as the dismissal of the counter-claim in O. S. No. 369 of 1987 (old O. S. No. 167 of 1983) is concerned.

( 3 ) THE appellant herein is the defendant and the respondent is the plaintiff.

( 4 ) FOR the sake of convenience, the parties will be referred to as arrayed in the suit.

( 5 ) THE defendant in O. S. No. 369 of 1987 filed a counter-claim also. The court below dismissed both the suits filed by the plaintiff and while dismissing the suit in O. S. No. 369 of 1987 also dismissed the counter-claim filed by the defendant.

( 6 ) THE facts, in brief, which led to filing of the suit are as under: the plaintiff is a public sector undertaking involved in activities of importing various materials from foreign countries. The defendant was acting as a clearing and forwarding agent to the plaintiff and in that regard terms and conditions were reduced into writing.

( 7 ) THE grievance of the plaintiff was that since the defendant violated certain terms and conditions, he filed the suit for recovery of consignments, original documents, and demurrage charges.

( 8 ) THE defendant in O. S. No. 369 of 1987 filed a counter-claim for recovery of a sum of rs. 2,20,179/- with interest and costs against the plaintiff for the services rendered by him as an agent. Initially, it appears that the defendant was intending to file a suit for the same relief and in fact a plaint under order 7 Rule 1 was drafted, but subsequently altered the same into a counter-claim under Order 8 Rule 6-A of the code of Civil Procedure. The counter-claim has also to be decided as a suit as per law.

( 9 ) THE court below while dismissing both the suits, dismissed the counter-claim also filed by the defendant. Hence, this Appeal. Suit (sic. Appeal) is only to the limited extent of the dismissal of counter-claim. The rest of the common judgment in both the suits is not under challenge.

( 10 ) THE court below dismissed the counter-claim, as could be seen from the common judgment, mainly on two grounds; firstly the counter-claim was filed after the written statement was filed, which is not permissible under Order 8 Rule 6-A of the code of Civil Procedure, and secondly the leave of the court as postulated under Order rule 6-A (9) (sic. Order 8 Rule 9) was not obtained by the defendant before filing the counter-claim. Of course, incidentally, the court below went into the aspect of merits, the effect of which would be dealt with at a later stage of the judgment.

( 11 ) HENCE, the point that falls for consideration before this court is as to whether the court below can dismiss the counter-claim on the grounds referred to supra?

( 12 ) INSOFAR as the 1 st ground for the court below to dismiss the counter-claim as not maintainable is concerned, it could be seen from the common judgment of the court below wherein the reasoning recorded by the court below is extracted hereunder for ready reference:"this indicates that the counter-claim also shall be included in the written statement. After filing the written statement the defendant cannot be permitted to file a counter-claim except by way of amendment of the written statement. Section 6-A further indicates that the plea of counter-claim has to be taken before the defendant has delivered his defence or before the time limited for delivering his defence has expired. By this it is abundantly clear that the counter-claim must be filed before the written statement or statement. In the instant case the defendant has filed his written statement on 14-9-1983 and filed the counter-claim on 26-2-1985. "

( 13 ) FROM the above, it is clear that the court below was under the impression that the counter-claim must be filed before