Hima Kohli, J. (Oral)-The present petition is directed against the order dated 19.11.2009 passed by the learned Civil Jude on an application filed by the petitioner (defendant in the court below) under Order 8 Rule 6A read with Order 7 Rules 10, 10A and 11, CPC seeking rejection/ dismissal/return of the plaint filed by the respondent (plaintiff in the court blow). By the impugned order, the learned trial Court dismissed the aforesaid application of the petitioner/defendant and held that the suit filed by the respondent/plaintiff against the petitioner / defendant, for declaring the gift deed dated 29.8.2002 in respect of first floor along with complete roof rights of the premises bearing No.3 /327, Nirankari Colony, Delhi as null and void, was maintainable.

2. The trial Court examined the submissions made on behalf of the petitioner and held that filing of a counter claim along with the written statement is not obligatory and it is the discretion of the defendant whether to file a counter claim or institute a separate suit. It was further observed that the respondent was well within her right to have sought a relief of declaration by instituting an independent suit and that the provision of Order 2 Rule 2, CPC had no application because it was the first suit of the said nature filed by the plaintiff in respect of the suit property.

3. Counsel for the petitioner submits that the trial Court erred in passing the aforesaid order for the reason that the provisions of Order 8 Rules 6A and 9, CPC give a right to a defendant in a suit to file a counter claim in addition to his right of pleading a set-off against the claim of the plaintiff. He states that in the present case, the petitioner (plaintiff in the Court below) had instituted a suit in May, 2008, for eviction of the respondent herein (defendant in the said suit) from the same premises, as also for possession thereof, apart from seeking a decree of mandatory and perpetual injunction and declaration against the respondent. He states that in view of the fact that the aforesaid suit was instituted by the petitioner prior in time to the suit instituted by the respondent on 13.8.2008, the respondent had an opportunity not only to file a written statement in the said suit, but also to file a counter claim against the claim of the petitioner and having failed to do so, the present suit instituted by her later in time, is hit by the provisions of Order 7 Rule 11 (d), CPC, which mandates that the plaint be rejected when the suit appears from the statement in the plaint to be barred by any law.

4. In support of the aforesaid submission, counsel for the petitioner relies on a judgment dated 15.9.2008, passed by a Single Judge of this Court, in CS(OS) 758/ 2006, entitled Renu Chhabra v. MCD. He particularly refers to para 11 of the aforesaid judgment to urge that before instituting the present suit, leave had to be sought by the respondent from the trial court under Order 2 Rule 2, CPC, which she failed to obtain. Reliance is also placed on the case, Jag Mohan Chawla & AnT. v. Dera . Radha Swami Satsang & Ors., reported as (1999) 4 SCC 699 to highlight the object of the amendment introduced by Rules 6A to 6G of Order 8 of the CPC.

5. Order 8 of the CPC deals with the written statement, set-off and counter claim. An amendment to the said provision was carried out by the Legislature, vide Amendment Act 104 of 1976, whereby Rules 6A to 6G were inserted w.e.f. 1.2.1977. Rule 6A, with which we are concerned, deals with a counter claim by a defendant. The said provision states:

"6A. Counter-claim by defendant-(I) A defendant in a suit may, in addition to his right 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