A counter claim should be treated as a cross suit and disposed of in the same trial as the original suit, as per the interpretation of Order VIII Rule 6A and the decisions in Gurbachan Singh v. Bhag Singh and Jagmohan Chawla v. Dera Radha Swami Satsang.

1. The respondents herein filed the Title suit No. 5 of 2004 in the Court of Civil Judge, Jr. Division, West Tripura, Agartala against the petitioner herein for specific performance of contract for sale of homestead land of the petitioner. After receiving summon from the Court the petitioner who is a lonely lady aged more than 70 years and suffering from cancer could realize that the respondents by fraud obtained her signature on the agreement for sale which she believed to be an agreement for tenancy.

2. The respondents being husband and wife looked after the petitioner and in due course attained her trust. They approached her to enter into an agreement of tenancy of constructing a building and believing them she executed the agreement which was for sale. Shocked as she was, she filed a writ ten statement in the said suit and along with it she filed a written counter claim under Order VIII, Rule 6 A CPC for a decree quashing the agreement dated 28-11-2003 which was the result of fraud and deception. The said counter claim was registered and numbered as Title Suit No. 27 (Counter Claim) of 2004 arising out of Title Suit No. 5 of 2004 and both were taken together for hearing. But the respondents who resisted the counter claim by filing a written statement raised preliminary issue regarding maintainability of the counter claim. The trial Court heard on the question of maintainability and by impugned order dated 24-8-2004 dismissed the counter claim as not maintainable. The present writ petition under Article 227 of the Constitution is directed against the said order on the ground that the trial Court has committed a manifest error of law leading to serious miscarriage of justice.

2A. The respondents contested the writ petition by filing affidavit-in-opposition. They contended that there was an agreement for sale of the lands which was executed by the petitioner with full knowledge and the story of fraud or deception is totally concocted. The relevant part of their contention which relates to the present controversy is that, the counter claim raised separately under Order VIII, Rule 6A is not legally maintainable.

3. I have heard Mr. P. Roy Barman, learned counsel for the petitioner and Mr. D. R. Chowdhury, learned counsel for the respondents.

4. The only question which falls for consideration is whether a counter claim can be separately raised or whether it should be a part of the written statement. Order VIII Rule 6A is noted below for appreciation of the controversy :--

6A : 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.

5. By the impugned order, the trial Court dismissed the counter claim only on the ground that it was not set up in the written statement itself which the defendant-petitioner filed in the Title Suit No. 5 of 2004. In support of this finding it referred to the decision of the Apex Court in Gurbachan Singh v. Bhag Singh reported in AIR 1996 SC 1087 and in Jagmohan Chawla v. Dera Radha Swami Satsang reported in AIR 1996 SC 2222. Learned counsels for the contending parties relied on these two decisions but with separate interpretations. While the submission advanced by Mr. Roy Barman is that the above provision of the CPC if read in the light of the decisions made by the Apex Court is bound to lead to the irresistible conclusion that the counter claim must be separately raised and cannot be a part of the written statement. Mr. Chowdhury, on the other hand, submits that the conclusion should be quite different and that the intention of the Legisl