Though the writ petition is listed for preliminary hearing, with the consent of learned counsel on both sides, it is heard finally.

2. The petitioner herein is the plaintiff in O.S.No.4663/2010. That suit has been filed by the plaintiff seeking recovery of a sum of Rs.1,94,626/- with interest at the rate of 21% p.a. from the date of the suit till realization. In response to the said plaint, the respondents herein who are the defendants in the suit filed their written statement seeking a counter claim to the tune of Rs.2,00,000/- on the alleged breach of the contractual agreement dated 08.03.2007. No written statement to the counter claim was filed by the plaintiff. Thereafter, the suit was set down for trial. On 05.08.2016, I.A.No.7 was filed by the plaintiff under Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) seeking permission to file the written statement to the counter claim sought by the defendants. That application was rejected by order dated 13.09.2016. Being aggrieved by the rejection of the said application, the plaintiff has preferred this writ petition.

3. I have heard learned counsel for the petitioner and the learned counsel for the respondents.

4. Petitioner’s counsel submitted that the reason as to why the written statement to the counter claim was not filed was on account of the Trial Court not fixing any date for filing of the written statement as envisaged under Order VIII Rule 6(A)(3) of CPC. He submitted that under the said provision, it was mandatory on the part of the Court to fix a period within which the written statement to the counter claim has to be filed. In the absence of such a period being fixed by the Court, the plaintiff was not obliged to comply with Order VIII Rule 1 of the CPC. In support of his submission, he placed reliance on two decisions, namely, (2010) 7 Mah LJ 386 equivalent to (2011) 1 AIR Bom R 126 (Dattaram Krishnanatha Pednekar and others Vs. Pandurang K.Pednekar and others) and Smt.Pushpa Sharma Vs. Civil Judge and others, which is an order passed in Civil Writ Petition No.17219/2010 on 13.09.2011 by the Rajasthan High Court.

5. Learned counsel for the petitioner contended that the impugned order may be quashed and permission may be granted to the petitioner to file his written statement.

6. Per contra, learned counsel for the respondents drew my attention to Order VIII Rule 6(G) of CPC. He contended that the rules relating to the filing of the written statement by the defendant would apply to the written statement to be filed in answer to a counter claim. That the written statement to the counter claim had to be filed by the plaintiff in terms of Order VIII Rule 1 of CPC. The same not having been done in the instant case, the Trial Court was justified in dismissing the application.

7. Elaborating the said contention, learned counsel for the respondents submitted that the counter claim was raised in the written statement which was filed before the Trial Court on 25.10.2010. The Court-fee on the counter claim was tendered on 22.11.2010. Therefore, in terms of Order VIII Rule 1 of CPC, the plaintiff had to file his written statement thirty days from the day, the counter claim was taken on record, i.e., the date when the Court-fee was paid. The petitioner cannot find fault with the Trial court for not fixing any time for filing of the written statement. He contended that it is the duty of the defendant to file the written statement within thirty days and in the absence of such a written statement being filed in time as in the instant case, being filed nearly six years thereafter in the midst of recording of evidence the same cannot be taken on record. According to him, the Trial Court was justified in dismissing the application filed for seeking permission to file the written statement. He submitted that there is no merit in the writ petition and the writ petition may be dismissed.

8. In response to this submission, petitioner’s counsel reiterated his submissio