JUDGMENT - SAVANT A.V., J.:—This Civil Revision Application filed by the original defendants in Special Civil Suit No. 34 of 1991, instituted by the respondents in the Court of the Civil Judge, Sr. Dn., at Kolhapur, raises two questions of law as under:

i) Whether the counter-claim under Order VIII, Rule 6-A of the Code of Civil Procedure must satisfy the conditions which govern the claim in the nature of a set off under Order VIII, Rule 6 of the Code of Civil Procedure?

ii) Whether such a counter claim can be raised under Order VIII, Rule 6-A of the Code of Civil Procedure after the written statement has been filed?

The Revision Application has been filed against the order dated 2nd December, 1987 rejecting the petitioners' application for amendment of the written statement.

2. On 16th March, 1981, the respondents/plaintiffs filed a suit claiming specific performance of an agreement of sale dated 2nd April, 1978 executed by the petitioners in their favour in respect of the land Gut No. 395 measuring 1 H. 66 R. situated at village Rangoli, Tal. Hatkanangale, District Kolhapur. The case of the respondents, as stated in the plaint, is very simple, viz., that there was an agreement of sale in their favour, executed on 2nd April, 1978 for a consideration of Rs. 30,000/- out of which they had paid Rs. 20,000/-. According to the agreement of sale, the possession was with the petitioners/defendants. The respondents alleged that they were ready and willing to perform their part of the contract and though the period stipulated in the said agreement for executing the sale deed was three years from 2nd April, 1978, the petitioners had not fulfilled their obligations under the agreement. The respondents, therefore, gave notice on 9th February, 1981 calling upon the petitioners to execute the sale deed in their favour and hand over possession. On 17th February, 1981, the petitioners gave a reply denying the claim made by the respondents. The validity of the agreement and consideration therefore were denied. It was contended that the agreement was sham and was not intended to be acted upon.

3. On 6th October, 1981 the petitioners filed their written statement denying most of the contentions raised in the plaint. The petitioners further contended that the true facts about the transaction were that they were in need of the amount of Rs. 20,000/- for repayment of certain debts and were, hence, required to execute the agreement of sale in favour of the respondents in respect of the land Gut No. 395 for consideration of Rs. 30,000/- though it was agreed and understood between the parties that the said agreement would not be acted upon. The petitioners did admit the receipt for Rs. 20,000/- by way of loan but contended that another land, Gut No. 893 measuring 1 H. 21 R. belonging to the petitioners was already given in possession of the respondents as licensees. It was contended by the petitioners that initially on 6th April, 1975, there were two agreements entered into viz. one was purporting to be an agreement of sale in respect of land gut No. 395 and other was a licence agreement in respect of land Gut No. 893 whereas Gut No. 893 was given in possession of the respondents apparently as licensees, it was really meant to be a security for the loan of Rs. 20,000/- advanced by the respondents to the petitioners. The respondents were put in possession of the said land gut No. 893 for a period of six years commencing from 6th April, 1975 and were to enjoy the usufruct of the said land and appropriate the same towards the repayment of Rs. 20,000/-. The petitioners, therefore, contended that the alleged agreement of sale dated 6th April, 1975 in respect of the land Gut No. 395 was merely by way of a security and was never intended to be acted upon. It was further contended that since the period of 3 years under the two agreements dated 6th April, 1975 was about to expire in April 1978, two fresh agreements were entered into between the parties on 2nd Apr

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