The court held that the trial court erred in rejecting the amendment application for the counterclaim and that the proper stage for the application under Order VIII rule 6-C, CPC will be when the case taken in the amendment application takes a form of the counterclaim after it has been allowed.

K. K. Birla, J.

1. This is a revision preferred by Sri Shushil Kumar Misra against the order dated 2-11-1983 passed by the Civil Judge, Ballia, rejecting the application of the revisionist for amending the counter-claim preferred by him.

2. In brief, Sri Kesho Prasad Misra and Bhola Nath Misra filed a suit against Sri Brij Behari Misra and others including Sri Shushil Kumar Misra, defendant no. 3 (the present revisionist) for declaration that the plaintiffs and the defendants 3rd set (defendant no. 8) were the exclusive owner of the premises in suit. The parties belonged to the same family. According to the plaintiffs, they had become exclusive owner of the premises in suit on the basis of a private partition in 1970. Defendant no. 3 in his written statement denied this private partition and claimed to be the joint owner of the properties and also set up a counter claim and prayed for partition of l/3rd share in the properties of defendants nos. 1 to 6.

He moved an application (186 Ka) for amending the counter-claim contained in the written statement. By this application he wanted to incorporate some other properties to be partitioned claiming them to be the joint properties of the parties. The plaintiffs filed an objection (paper no., 187-C) (Annexure I to the Supplementary Counter Affidavit). By the impugned order the learned Civil Judge rejected the amendment application no. 186 Ka. Being aggrieved, Shushil Kumar has preferred this Revision.

3. In the impugned order the learned Civil Judge was of the opinion that the counter claim can only be preferred under Order VIII rule 6-A CPC till the time of the filing of the written statement and as such the revisionist could not have preferred the counter claim at that time. Learned counsel for the revisionist has contended that the learned Civil Judge has erred in holding so and the counter claim can be preferred even after the filing of the written statement. The contention of the learned counsel for the revisionist is correct and has been rightly not seriously disputed by the learned counsel for the plaintiff-opposite parties. The bare perusal of Order VIII rule 6-A CPC shows that the words "before the defendant has delivered his defence or before the time limited for delivering his defence has expired" relate to the accruing of the cause of action to the defendant and not to the preferring to the counter claim. In the case of Mahendra Jung Rana v. Pan Sing Nagi, 1980 ALJ 319, also the same view has been taken. Therefore, the contention of the revisionist in this regard is correct and the finding of the learned Civil Judge in this regard cannot be maintained.

4. However, it is contended by the learned counsel for the opposite parties that the amendment application (186 Ka) has been rejected on other valid grounds as well.

Defendant no. 1 is the father of Defendant no. 3. It is alleged that a similar amendment was sought by him in his counter claim which had been rejected on 31-3-1982. This will neither be res-judicata nor estoppel. As pointed out earlier, the plaintiffs claim to be the exclusive owner of the properties in suit on the basis of the alleged private partition which is denied by the revisionist as well. Therefore, this could not be a ground for rejecting this amendment application. It may also be pointed out that it is not the counter claim which is in dispute in the revision but it is the rejection of the application seeking amendment in the counter claim which is under consideration before us.

5. Order VIII rule 6-C provides the contingencies where the plaintiff contends that the claim raised in the counter claim ought not to be disposed of by way of counter claim but in an independent suit. Then he 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.

6. The contention of the l