JUDGMENT :

Dr. A.K. Rath, J.

By this application under Article 227 of the constitution of India, challenge is made to the order dated 15.09.2016 passed by the learned Additional Civil Judge (Senior Division), Balasore in C.S. No.811 of 2013, whereby and whereunder the learned trial court rejected the written statement-cum-counter claim of defendant no.3.

2. Opposite party no.1 as plaintiff instituted a suit for partition and other consequential briefs impleading the petitioner as well as opposite party nos. 2 and 3 as defendants. The petitioner is defendant no.3 in the suit. Pursuant to issuance of summons, defendant no.3 entered appearance and filed a written statement-cum-counter claim denying the assertions made in the plaint. An objection was raised by the office.

Thereafter the matter was placed before the Presiding Officer for acceptance of counter claim. It was submitted by the learned counsel for the defendant no.3 that the entire properties of the plaintiffs and defendants were not brought into hotch-potch in the suit for which he has filed the counter claim by bringing all the joint family properties. On the other hand, a contention was raised by the learned counsel for the plaintiff that the plaintiff has purchased the land and as such he is not required to bring all the properties. Learned trial court came to hold that the plaintiff and defendant no.3 are the purchasers out of the suit land. Defendant no.3 filed a counter claim for partition of the suit along with other land which has been recorded in the name of defendant nos.1 and 2. Held so, learned trial court rejected the same.

3. Heard Mr. V. Jena, learned counsel for the petitioner and Mr. D.P. Mohanty, learned counsel for the opposite party no.1.

4. Mr. Jena, learned counsel for the petitioner, submitted that the plaintiff has not included all the properties for partition. The defendant no.3 filed written statement-cum-counter claim to bring the left out properties. Learned trial court is not justified in rejecting the counter claim. He relied on the decision of this Court in the case of Khetramohan Tripathy and another vs. Basudev Acharya, 2016 (I) ILR-CUT-112.

5. Per contra, Mr. Mohanty, learned counsel for the opposite party no.1, submitted that the counter claim does not relate to suit claim. Thus the learned trial court is justified in rejecting the same.

6. An identical matter came up before this Court in the case of Purna Chandra Biswal vs. Kiran Kumari Brahma, 2017 (I) OLR-1061. This Court held thus :

“8. Order 8 Rule 6-A(1) and 6-C, which are hub of the issue, are quoted below:-

“6-A(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:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

xxx xxx xxx

6-C. Where any defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.”

9. The words “any right” appearing in Rule 6(A)(1) of Order 8 C.P.C. mean right over the suit land. The same must be in respect of cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit. Thus the defendant cannot file a counter claim in respect of the property, which is not the subject matter of s