The plaintiff, who is the revision petitioner, aggrieved by the order passed by the Court below in allowing the fourth defendant to file the counter claim under Order VIII Rule 9 of the Code of Civil Procedure, has filed the above revision.

2. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking in the suit.

3. The suit is filed for partition. The fourth defendant is the brother of the plaintiff. According to the fourth defendant, one item of property in Schedule A and the property mentioned under Schedule C, in the partition deed dated 23.05.1990 were partitioned and given exclusively to the fourth defendant. Hence, he has made a counter claim with respect to that portion of the property. The said application was allowed by Court below, which is now under challenge in this revision by the plaintiff.

4. The learned counsel appearing for the revision petitioner/plaintiff, contended that the written statement was filed by the R6/fourth defendant in the month of June 2012. However, the counter claim under Order VIII Rule 6A of the Code of Civil Procedure [in short, ‘CPC’] has been filed belatedly on 05.12.2013, that too after the commencement of trial, when it is open to R6/fourth defendant to file an independent suit on the same cause of action, for which the counter claim was preferred. He would further submit that the provisions under Order VIII Rule 6A of the CPC must be considered having regard to the other provisions viz., Order VI Rule 17 and Order VIII Rule 9 of the CPC. A right to file a counter claim is an additional right. The only criteria is that the cause of action must accrue either before or after filing of the suit but before the defendant has raised his defence. The independent claim of the fourth defendant with respect to a few items of the properties based on the partition deed dated 23.05.1990 has accrued even much prior to the filing of the suit and the same existed even as on the date of filing of the suit and continued till the counter claim is filed. Accordingly, he would pray for setting aside the order passed by the court below.

5. Heard the learned counsel appearing for the petitioner; the learned counsels appearing for respondents 4 to 6. The respondents 1 to 3 were given up and perused the records.

6. A reading of the above provision viz., Order VIII Rule 6A(1) of CPC does not, on the face of it, bar the filing of the counter claim by the defendant after he had filed the written statement. The above Rule 6A(1) only states that counter claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence, has expired.

7. As stated earlier, the fourth defendant has made a counter claim based on the partition deed dated 23.05.1990. Therefore, the cause of action for the fourth defendant was available before he had filed his written statement. A right to file a counter claim is an additional right under Order VIII Rule 6A of CPC, which preferably accrues from the date of cause of action, however, the cause of action must accrue before or after the filing of the suit and if such cause of action continued even after filing of the written statement, a counter claim can be filed, even after the filing of the written statement.

8. In this regard, the learned counsel appearing for the R6/fourth defendant relied on the judgment of this Court reported in 2012 (4) CTC 807 [A.Nandagopala Krishnan vs. Antony]. The relevant paragraphs are as under:

“11. I derive support to my view from the following paragraph in Mahendra Kumar vs. State of Madhya Pradesh, AIR 1987 SC 1395, wherein it is held as below:

“Paragraph 15 of the above case also speaks about the fact “what is laid down under Rule 6-A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence. The word “De