The main legal point established is that a counter-claim can be filed before delivering the defense or before the time limited for delivering the defense expires, as per Order 8 rule 6-A of the CPC.

SHIVASHANKAR BHAT, J.

( 1 ) DEFENDANTS I. A No. VI filed in the lower court for cmendment of the written statement, whereby, in substance they sought to introduce the relief of counterclaim seeking a declaration as to their title to the temple etc. , and that they are the Wahivatdars and Poojaries of the subject-matter of the suit, etc. , was rejected, by the lower court on the ground that, at the present stage of the suit, the same cannot be allowed It was held that written statement was filed in September 1983, issues were framed on 3-8-1984 and the plaintiff No. 3 was examined as P W. 1, on 28-11-1985. The I A. in question was filed only on 13-12-1985. According to the learned Munsiff, counter claim has to be made on or before filing the written statement, as per Order 8 rule 6-A of the code of Civil Procedure. A decision of the High Court of Punjab and Haryana in bank of Baroda v Gurucharan Singh (AIR 1986 P and H 252) was relied.

( 2 ) A perusal of the written statement as filed earlier shows that, the necessary basic facts leading to the relief now sought to be claimed by the defendants, have been pleaded, at para-9 thereof. The averments now sought to be introduced in no way introduces any new set of assertions. if it is a case of an amendment of the written statement simpliciter under Or. 6 Rl 17 CPC, the leave to amend could have been granted without much pondering over the question.

( 3 ) THE basic question involved here is whether, a counter-claim can be preferred after filing of the written statement. in the aforesaid decision of the High court of Punjab and Haryana, it was held that,-". . . . THE defendant can file the counter-claim before delivering his defence or before the time limited for delivering his defence expires. He has also to mention that fact in the written statement. it is thus evident that the defendant can file the counter-claim before he files the written statement, and cannot be allowed to do so by amending the written statement. The object of incorporating the provision for setting up the counter-claim before the filing of the written statement appears to be, that the disposal of the suit may not be delayed In the present case, the defendant has been allowed to set up a counter claim even after the suit had been decreed against him which, in my view, could not be done. "

( 4 ) THE learned single Judge in the above decision understood the language of Or. 8 r. 6a as permitting the counterclaim to be set up only before the defendant delivered his witten statement or before the time limited for delivering the written statement has expired. Order 8 rule 6-A (1) of the CPC reads thus :"6a- (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 counterclaim 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. "

( 5 ) THIS provision enables a defendant to set up counter claim against the claim of the plaintiff. Such a counter-claim is to be, for any right or claim in respect of a cause of action accruing to the defendant against the plaintiff. So far, the language is absolutely clear. It is the subsequent phraseology that gave scope for the particular interpretation in AIR 1986 P and H 252. Those subsequent words were understood as related to the point of time when the counter-claim should be set up and was held, to be on or before the time for filing the written statement.

( 6 ) ACTUALLY, setting up of the counterclaim which is permitted, was qualified, only by the earlier words as the one "pertaining to any right or claim in resp

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