A counter-claim can only be filed if the cause of action accrued before the defendant delivered their defense or before the time limit for delivering the defense expired.

JUDGMENT - DESHPANDE R.G., J.:---Rule, returnable forthwith. With the consent of the parties, matter is taken up for hearing.

2. The petitioner, who is a plaintiff, has initiated a suit for declaration and injunction against the present respondents defendants claiming a decree for declaration, that the plaintiff is the owner of the field in question. The respondents-defendants appeared and filed their written statement on February 23, 1995. However, hearing realised that some important and material defence remained to be taken in the written statement and since the counter claim through the written statement was already made, the respondents moved an application on October 5, 2001 for amendment in the counter claim. This application for amendment of the counter claim is for the purposes of inclusion of certain property in the claim, containing that the property purchased on December 30, 1992, March 23, 1989 and April 10, 1989 though appeared to have been purchased by the petitioner in the name of his sons, necessarily was required to be mentioned in the counter claim and hence the counter claim was tried to be amended through this application. Without going to the details of the property which is sought to be included in the counter claim, the present petition can be decided particularly when the question raised before this Court is as to whether the learned Judge of the trial Court was justified and right in allowing the amendment to the counter claim.

3. To decide the point in question, it would be appropriate to refer to the provisions of Order VIII, Rule 6-A of the Code of Civil Procedure. This Rule reads as under:---

"6-A. Counter-claim by defendant.---(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 counter-claim 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.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."

The provisos thereof are not material for the purposes of the decision of the present petition. From the above said provisions of Order VIII, Rule 6-A, it is clear beyond doubt that counter claim can be raised at the time of filing of the written statement or if the time for filing of written statement is extended then on that day, but the cause of action is to arise on or before either filing of the suit or in any case on or before the date of filing of the written statement, if extended.

4. The present case has to be decided on the basis of this Rule 6-A of Order VIII of the Code of Civil Procedure to find out the possibility of granting such permission of amendment to the counter claim. What is material which is required to be seen is the date on which the cause of action arose for filing such an amendment to the counter claim. Suffice, it is at this stage to refer to paragraph 8-A of this application which is marked as Exhibit 55 on the record of the trial Court. This paragraph 8-A of the application specifically states, "the cause of action for the relief of partition and separate possession of the fields described in para 7-A above arose on or about 18-8-2001 when the defendants received the copies of mutation entries of these fields f

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