Amendment of the written statement to introduce a counterclaim in respect of a cause of action arising after filing of the written statement is not permissible under Order 8, Rule 6-A, CPC.

JUDGMENT :

S.C. Mohapatra, J. - Plaintiffs are the Petitioners in this Civil Revision against the order allowing amendment of the written statement so far as the counter claim.

2. Suit is for title, possession and consequential permanent injunction. Defendant Nos. 1 to 3 in their written statement filed on 24-6-1981 while disputing Plaintiffs' assertion made a counter claim of their title in respect of the suit land. When the suit was pending, Plaintiffs made construction on their own and to obstruct which Defendants tiled a suit for injunction. Such suit having been dismissed, appeal was filed. They filed an application for amendment of the written statement making counter claim which Plaintiffs assert to be the same as the claim in their suit. Plaintiffs objected to the application for amendment. Learned Munsif having allowed the amendment, this Civil Revision has been filed assailing the order.

3. There is no dispute that by amendment of the written statement counter claim has been made in respect of cause of action arising after filing of the written statement and counter claim. Mr. M. Patra, learned Counsel for the Petitioners submitted that in view of the clear language of Order 8, Rule 6-A, CPC there is no scope for filing a counter claim after filing of the written statement and as such, amendment to written statement introducing a counter claim could not have been allowed.

4. Order 8, Rule 6-A, CPC reads as follows:

6-A. 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 counterclaim 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.

(2) Such counter-claim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The Plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the Defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a point and governed by the rules applicable to points.

5. Aforesaid provision was subject matter of consideration of this Court in Kashi Biswanath Dev Vs. Paramananda Routrai and Others, In that case Defendant sought to introduce counterclaim of title by amendment. It was held that by amendment of written statement such a counter claim cannot be made. Same view was taken in 63 (1987) CLT 337 Prafulla Kumar Samantaray v. Smt. Ranjita Samantaray. Correctness of both the decisions was subject matter of consideration of the division Bench in the decision reported in 64 (1987) CLT 653 Mangulu Pirai v. Prafulla Kumar Singh and Ors. Overruling the decisions of this Court to this effect, it will held:

...the words either before or after filing of the suit but before the Defendant has delivered his defence or before the time limited for delivering his defence has expired appearing in Order 8, Rule 6-A(1) mean to limit the right of the Defendant to set up by way of counter claim in respect of a cause of action which arose after he delivered his defence or after the expiry or the date for filing his defence only. In other words, the enabling provision introduced by the 1976 amendment entitles a Defendant in a suit to set up by way of counter-claim against the claim or the Plaintiff any right or claim in respect of a cause of action accruing to him 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 defenc