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, appearing on behalf of Opposite Party No. 13 however, contends that a counter-claim has necessarily to be directed against the plaintiff and it may also claim relief against co-defendant. He submits that in the present case Defendant No. 13 had sought relief not only against the plaintiff but the co-defendant also and, as such, the counter-claim was rightly accepted. In support of the submission, Mr. Verma has placed reliance on a judgment of the Supreme Court in the case of Rohit Singh V/s. State of Bihar 2007(1) PLJR (SC) 232 and my attention has been drawn to the following passage from paragraph 18 of the judgment, which reads as follows:

Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained.

5. I do not find any substance in the submission of Mr. Tiwary and the decision relied on instead of supporting his case, goes against him.

6. In my opinion, a counter-claim has necessarily to be directed against the plaintiff in the suit and incidentally or along with the plaintiff, it may also claim relief against co-defendant in the suit. Defendant No. 13 has precisely done the same and, as such counter-claim was not fit to be rejected on the ground that it was against the plaintiff and co-defendant also.

7. Now reverting to the judgment of this Court in the case of Hem Narain Thakur (Supra), same instead of supporting the case of the petitioner goes against him. In the said case counter-claim was not against plaintiff but against co- defendant and this Court found that the same cannot be allowed as a counter-claim. In the case of Rohit Singh (supra) it has been clearly held that a counter claim has necessarily to be directed against the plaintiff, though incidentally or along with it relief against co-defendant can also be sought. This decision thus squarely answers this question authoritatively.

8. Mr. Tiwary, then submits that defendant No. 13 had laid counter-claim without filing the written statement and same is not permissible to be accepted. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Ramesh Chand Ardawatiya V/s. Anil Panjwant AIR 2003 Supreme Court 2508 and my attention has been drawn to the following passage from paragraph 28 of the judgment which reads as follows:

But certainly a counter-claim is not entertain able when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obvi