The counter-claim can be lodged even after the delivery of defence or expiry of time limited for delivering the defence, but the only criterion is the relevancy of the date of accrual of cause of action.

Original Suit No. 826 of 1983 was initiated in the Court of 1st Additional Munsif, Shaniahanpur by the plaintiff on 29-9-1983. A written statement was filed on 24-2-1985. An application for amendment of written statement setting up counter claim was filed on behalf of the defendant alleging that the cause of action of the counter claim had arisen on 10-8-1989. The said amendment applica tion was objected to. By an order dated 21-4- 1980 the said application was dismissed on the ground that the counter claim can not be set up because of cause of action had arisen after filing of the written statement as contemplated under Order VIII, Rule 6-A of the Code of Civil Procedure. A resultant revision, being Civil Revision No. 37 of 1990 preferred by the defendant was dismissed on 25-4-1991. Subsequently an application for amendment to the plaint was sought for by the plaintiff on 9-1-1995, wherein it was said that the disputed road was closed since the year 1976, where the plaintiff should be permitted to raise a wall and accordingly had incor porated the prayer to that effect. After the amendment was allowed the defendant filed additional written statement on 5-4-1995. In the said additional written state ment from paragraphs 11 onwards the defendant had pleaded to set up a counter claim again basing the date of cause of action in para 12 as on 10-8-1989. The said written statement was accepted by the learned Munsif by an order dated 6-7-1995 only to the extent of paragraphs 1 to 10 thereof while the counter claim set up in paragraphs 11, 12, 13 and the prayer were dis-allowed. Against the said order Civil Revision No. 56 of 1995 was preferred by the defendant. By an order dated 12-9-1995 the said revision No. 56 of 1995 was allowed and part of the order dated 6-7-1995 passed by the learned Munsif rejecting the last part of the additional written state ment beginning from para 11 onwards was set aside. It is against this order the present writ petition has been moved. On the prayer of Sri K. M. L. Hajela, learned counsel for the petitioner leave is given to amend the cause title so as to convert this petition into one under Article 226 of the Constitution.

2. In support of the petition Sri Hajela, learned counsel for the petitioner contends that since the cause of action has arisen on 10-8-1989 long after filing of the written statement namely on 24-11-1985, therefore, the defendant is precluded from raising any counter claim in view of specific provision of Rule 6a of Order VIII of the Code which has since been interpreted by the Apex Court in the case of Mahendra Kumar v. State ofmadhya Pradesh; AIR 1987 SC 1395.

3. On the other hand Sri Narendra Mohan, learned counsel appearing on behalf of the respondents contend that since the said fact was not in the plaint, therefore, the application for counter claim was rightly rejected earlier. But after the plaint was amended incorporating the said fact on 9-1-1995 the defendant having been allowed to file additional written statement with regard to the said fact in that event, accord ing to him, the date of filing written statement, as contemplated in Rule 6-A of the Code of Civil Procedure would be the date of filing of additional written statement and the cause of action having arisen before 5-4-1995, therefore the interpretation given in the case of Mahendra Kumar (supra) can not be attracted. Inasmuch as, according to him, the counter claim has been based on the cause of action namely dated 10-8-1989 which is earlier than the date of filing of additional written state ment namely 5-4-1995. He supports his contention on the ground that in absence of specific fact which was brought on by way of amendment on 9-1-1995 there was no scope of pleading the counter claim before the additional written statement was filed. The earlier rejection of the counter claim could be ignored because of the reason that at that point of time the counter claim was misconceived.

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