Chandramauli Kr.Prasad, J.

1. Defendant No. 1- petitioner, aggrieved by the order dated 28.9.2005 passed by the Subordinate Judge, Vaishali at Hajipur in Title Suit No. 171 of 1986 accepting the counterclaim of Defendant No. 13, has preferred this application.

2. Short facts giving rise to the present application are that defendant No. 13 appeared in the suit and laid counter claim against the plaintiff as also other defendants. He had chosen to file the counter claim without filing the written statement. By reason of the impugned order said prayer has been allowed.

3. Mr. Tiwary, appearing on behalf of the petitioner submits that a counter claim can be laid only against plaintiff and not against co-defendants. In support of his submission he has placed reliance on a judgment of this Court in the case of Hem Narain Thakur V/s. Deo Kant Mishra and Ors. AIR 2000 NOC 23 Patna in which the placitum B reads as follows:

(B) Civil P.C. (5 of 1908), Order 8 Rule 6-A-Counter claim-Allowing of-Claim of defendant was already under adjudication Further, claim was not against plaintiff but against another intervener-defendant-Same cannot be allowed as counter-claim.

4. Mr. Verma, appear