The main legal point established in the judgment is that the right to file a counter-claim is not limited to money suits alone, as interpreted from the provisions of Order VIII, Rule 6 and 6-A CPC.

POONAM SRIVASTAVA, J.

Head Sri Anand Swaroop Srivastava and Girish Chandra Yadav for the petitioners.

2. The present writ petition has been filed challenging the order dated 8-7-2004 passed by Additional District Judge Court No. 4, Azamgarh in Civil Revision No. 5 of 2003 and order dated 3-1-2004 passed by Civil Judge (Junior Division) City, Azamgarh in Suit No. 361 of 1985. The petitioners/plaintiffs filed a suit for permanent injunction restraining the defendants from making any construction or obstructing flow of Nali over the land in question. The written statement was filed by the defendants. Subsequently counter-claim was filed on 9-8-1989. An amendment application was filed for amending the counter- claim on 31-5-1996 which was allowed. Subsequently another amendment application was filed on 31- 1-2003 which was numbered as 175 Ka-2 for amending the counter-claim. The trial Court was of the view that the nature of the suit will not be altered and as such the amendment application was allowed. The petitioner filed a Civil Revision challenging the order dated 31-1-2003 which has also been dismissed. Both the orders have been challenged in this writ petition.

3. The submission made on behalf of the petitioners is that Order VIII, Rule 6 provides that the particular of set-off is to be given in written statement and counter-claim by the defendant is entertained under Order VIII, Rule 6-A CPC. The argument on behalf of the petitioner is that on a joint reading of Rules 6

and 6-A, right to file counter-claim is only in a money suit and not otherwise. Since the present suit is not a money suit as such the counter-claim is not maintainable and the subsequent amendment of the counter claim was also liable to be rejected. The Rules 6 and 6a are quoted below:

"6. Particulars of set-off to be given in written statement.- (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

(2) Effect of set-off - The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleaded in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

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 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.

(2) Such counter-claim shall be same effect as a cross-suit 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.

(5) The counter-claim shall be treated a plaint and governed by the rules applicable to the plaints. "

The main thrust of the arguments of the Counsel for the petitioner is th

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