A counter-claim can be filed after the filing of the written statement or after the time fixed for the said purpose had expired, provided that the cause of action for the counter-claim accrued before the defendant delivered his defence or before the time limited for delivering his defence has expired.

AGRAWAL, C. J.

( 1 ) THIS application in revision filed by defendant 3 is directed against an order of the trial Court rejecting his application for amendment of the written statement by incorporating certain statements in the nature of a counter-claim.

( 2 ) OPPOSITE parties 1 to 3 as plaintiffs filed Title Suit No. 5 of 1984 in the Court of the Munsif, Dhenkanal against the order of the Tahasildar, Dhenkanal, directing their eviction from the suit land. Defendants 1 and 2 as well as defendant 3 filed written statements denying the plaintiffs' claim of possession over the suit land and claiming the possession of defendant No. 3 The hearing of the suit commenced on 1908-1985 and was closed on 15-10-1985. Arguments were also fully heard on 5-11-1985, and 20-11-1985 was fixed for judgment. In the meantime, on 16-11-1985, defendant No. 3 filed an application for amendment of the written statement under the label of O. 8, R. 6a (1) of the Civil P. C. (for short 'the Code') with a prayer for addition of two paragraphs as paras 24 and 25 to the written statement reading as follows :-"24. That the defendant after getting delivery of possession from the aforesaid Subas Dei has been possessing the land till Dec. , 1983 and thereby he has acquired title in respect of the suit land and this may be treated as a counter-claim against the plaintiff. 25. That this Honourable Court has jurisdiction to decide the counter-claim of this defendant against the plaintiff and the defendant is willing to pay the Court-fee as per the valuation of the suit and if the claim of the defendant 3 succeed, he may given delivery of possession of the suit land. "the plaintiffs filed objection to this petition for amendment contending, inter alia, that the proposed amendment would change the nature and character of the suit and, therefore, it should be rejected. The trial Court by the impugned order has rejected the petition on the ground that it was belated and that it should have been filed either before the defendant had delivered his defence or before the time limited for delivering his defence had expired.

( 3 ) WHEN the revision application was taken up by a learned Judge of this Court and some decisions of this Court were cited in support of the Order of the trial Court, he entertained doubt regarding their correctness and referred the matter to the Division Bench. That is how it has been placed before us.

( 4 ) THE question that arises for consideration is as to whether a counter-claim can be filed after the filing of the written statement or after the time fixed for the said purpose had expired.

( 5 ) THERE was no provision for filing a counter-claim by a defendant before the amendment of the Code in the year 1976 when R. 6a was inserted. Sub-rule (1) which is relevant reads as follows : -"a defendant in a suit may, in addition to his right of pleading a set-off under R. 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 accuring 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 time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not : provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. "

( 6 ) TWO decisions of this Court which have considered the matter are Shri Kashi Biswanath Dev. v. Paramananda Routrai, (1985) 1 OLR 256, and Prafulla Kumar Samantaray v. Smt. Ranjita Samantaray, (1987) 63 Cut LT 337. The learned Judges in both the above cases have held that the provision of R. 6a was clear to the effect that a counter-claim must be filed with respect to a cause of action either arising before or after the fling of the suit, but before the defendant delivers his defence or before the time limited for delivering his defence has expired.

( 7 ) IN my opinion, th