K.T. Sankaran, J.

1. The question involved in this Original Petition is whether the defendant in a suit can raise a counter claim with respect to a cause of action which arose consequent to the amendment of the plaint, after filing written statement by the defendant.

2. The petitioner filed the suit for fixation of boundary against the respondent and eight others. Defendants 1, 2 and 4 to 9 filed the written statement dated 23.9.2009. According to the defendants, the suit is barred by res judicata in view of the decision in a previous litigation between the parties. An issue was raised on the question of res judicata. The defendants wanted that issue to be tried as a preliminary issue. The trial court held that to decide that issue evidence may be required and, therefore, it was not proper to decide the question of bar of res judicata as a preliminary issue.

3. The petitioner/plaintiff filed I.A.No.6398 of 2010 for amendment of the plaint to correct the extent of the plaint schedule property and to add a prayer for consequential injunction. The respondent/first defendant objected to the same. But the court below allowed the application for amendment of the plaint by the order dated 23.9.2010.

4. Thereafter, the first defendant filed I.A.No.7222 of 2010 for leave to accept the counter claim filed along with the additional written statement. As per the counter claim sought to be raised, the defendant prayed for the issue of a permanent prohibitory injunction restraining the plaintiff from destroying the existing boundaries. In the affidavit seeking leave to file the counter claim, it was alleged by the first defendant that after I.A.No.6398 of 2010 (application for amendment of the plaint) was allowed, on the next day, an attempt was made by the plaintiff to destroy the existing boundaries separating the plaint schedule property and the defendants' property.

5. The court below allowed I.A.No.7222 of 2010 (application for leave to accept the counter claim), which is under challenge in this Original Petition filed by the plaintiff.

6. Sri. Shinod, the learned counsel appearing for the petitioner, submitted the following: There is no provision in the Code of Civil Procedure for filing an additional written statement and it is only a practice that is being followed. The cause of action for filing a counter claim by the defendant against the plaintiff must be one which accrues 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, as provided under Rule 6A Order 8 of the Code of Civil Procedure. In the present case, the written statement was filed and the cause of action admittedly arose thereafter and therefore, it could not be the subject matter for a counter claim.

7. Sri. G.S. Raghunath, the learned counsel appearing for the respondent/first defendant, submitted that the counter claim was instituted on account of the amendment of the plaint and a cause of action which accrued in favour of the defendant immediately after allowing the application for amendment. The learned counsel submitted that once the plaint is amended, the defendant gets a right to amend his written statement or to file an additional written statement. At that time, he also gets a right to file a counter claim in respect of a cause of action which accrued before the date of filing of the additional written statement.

8. Rule 6A Order 8 of the Code of Civil Procedure is extracted below for the sake of convenience:

"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 e