A counter-claim must be concerning any right or claim in respect of the cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit and be such which can be set up against the claim in suit.

JUDGMENT - B.A. MASODKAR, J.:---This is original defendant's civil revision application against an order refusing new not which sought to set up a counter claim.

2. The following facts are not in dispute. At Village Sonawadi, Tahysil Daund, District Pune, the respondent-plaintiff claimed that he is the owner of Gat No. 242 and towards its east is situated Gat No. 244. On March 14, 1978, the respondent-plaintiff the suit on assertion that he was the owner and in peaceful possession of all that area of Gat No. 242 and further that the petitioner-defendent is trying to trespass in Gat No. 242 and threatening to construct a house in the area which forms part thereof. The respondent-plaintiff alleged that, in fact, Gat No. 242 is under cultivation and crops were standing therein. Inspite of this, the petitioner-defendent was trying to enter, contrary to law and by use of force. On these allegations, he prayed for the relief of permanent injuction against the petitioner-defendant. Thus, the stir claim is one for interdictory relief on the basis of title and possession to the property, being Gat No. 242.

3. The defendant filed his written statement denying allegations that he was trying to trespass into Gat No. 242, which is the property of the plaintiff. He alleged that, in fact, the plaintiff was trying to trespass upon the property of the defendant. After filing this written statement, which contains other assertions with regard to Gat No. 243, the defendant purported to file an amendment application on September 13, 1982 seeking to allege that the plaintiff had encroached upon his land to the extent of 16 Ares. He further stated that was so established before the revenue authorities. On that basis, he wanted to amend the written statement and set up a counter claim so as to recover 16 Areas of land from the plaintiff. That amendment was rejected.

4. In this Court, Vaze, the learned Counsel appearing in support of the civil revision application, relied on the provision of Order 8, Rule 6-A of the Code of Civil Procedure, (hereinafter called as "the Code"). He submitted that the recovery of the encroached portion, as alleged by the defendant, would be a counter-claim against one claim of the plaintiff and, therefore, should have been allowed, instead of driving the defendant to file a separate suit.

5. Even assuming that this could be regarded as a counter-claim, the claim of the plaintiff was that of merely of injuction and did not seek any possession of property. Question is, could the defendant, therefore, seek recovery of property against a claim? Under Order 8, Rule 6-A of the Code, the defendant was bound to raise such claims before he had delivered his defence or by written statement and not by amendment of the defence. That would be enough to reject such a claim.

6. Further statutory provisions contained in the matters of raising counter-claim are clearly governed by Order 8, Rule 6-A of the Code as enacted by the Amending Act of 1976. Once properly raised before the defendant has delivered the defence or before the time limited for delivering such a defence, the Court has the power to treat such counter-claim as the plaint in a cross-suit and try the same as cross-suit along with the suit, i.e. the claim and the counter-claim together. The underlying principles of these provision is enabling so as to avoid multiplicity of proceedings, permitting defendant to set up such a counter-claim against the claim of the plaintiff, but that is not to say that any and every claim could be so set up in any suit by mere reason of identity of parties, i.e. plaintiff or defendents. It is implicit that counter-claim necessarily must be concerning any right or claim in respect of the cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit and be such which can be set up against the claim in suit. Unless these qualification are satisfied, the same cannot be covered by Order 8, Rule 6-A of the

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