The main legal point established in the judgment is that a counterclaim should be set up before the framing of issues and before the commencement of evidence to avoid prejudice to the plaintiff and to ensure the smooth flow of proceedings.

B.S. Verma, J.

1. The writ petition is admitted.

2. This writ petition has been preferred for issue a writ, order or direction in the nature of certiorari quashing the impugned Judgment and order dated 15-4-2000 and 14-10-1999 passed by the respondent Nos. 1 and 2 respectively (Annexure Nos. 8 and 7 respectively), By the order dated 15-4-2000, the application for amendment of written statement/counter claim under Order 6, Rule 17 C.P.C. (paper No. 265-A) filed by the defendant-respondent Nos. 1 to 3 has been allowed on payment of cost of Rs. 250/- and the objection of the plaintiffs paper No. 268-C has been rejected. By the order dated 15-4-2000 the revision preferred by the petitioner-plaintiffs has been rejected by the District Judge Nainital.

3. The plaintiffs-petitioners filed a Civil Suit No. 84 of 1988 for a decree of permanent injunction against the defendant-respondent Nos. 3 to 6. Written statement was filed in the suit, issues were framed and the suit was fixed for final hearing by the trial Court.

4. By the application paper No. 265-A, the defendant Nos. 1 to 3 prayed for counterclaim on the ground that on 7-9-1998, the plaintiffs and defendant No. 4 Bal Krishna Sanwal had entered into a compromise without the consent of co-defendants, which necessitated the amendment in the written statement to file counter-claim in the suit. The application was opposed by the plaintiff-petitioners, who filed objection contending that the application has been moved at a highly belated stage to prolong the litigation and that the application is mala fide and prejudicial to the interest of the plaintiffs. After hearing both the parties, the learned Civil Judge (Senior Division) Nainital allowed the application for counter claim on payment of costs of Rs. 250/- thereby permitted the defendants to amend their written statement vide order dated 14-10-1999.

5. Aggrieved by the said order, the plaintiff-petitioners preferred revision (Civil Revision No. 21 of 1999) before the District Judge, Nainital, on the ground that the applicant-defendants had disclosed their defence and as such the cause of action in respect of which the counter-claim has been sought by paper No. 265-Ka was in the knowledge of the defendants from the very beginning and the application was barred by the provisions of Order 8, Rule 6-A of the C.P.C. It was also contended that the trial Court failed to exercise the jurisdiction vested in it by law by not rejecting the amendment application to amend the written statement of the respondent Nos. 3 to 5 at a highly belated stage when the statements of the plaintiffs had already been recorded in the suit.

6. The learned District Judge by order dated 15-4-2000 has dismissed the revision and confirmed the order passed by the learned Civil Judge (Senior Division) Nainital holding that the counter claim can be filed even after filing of the written statement and that the grant of permission to amend the written statement does not cause any prejudice to the rights of the plaintiffs.

Aggrieved by the impugned orders passed by the trial Court as well as the revisional Court, the plaintiff-petitioners have come up before this Court in the present writ petition on the same grounds.

7. It has been stated by the plaintiff-petitioners in paragraph No. 10 of the writ petition quoted as under:

10. That survey commission was held for plot Nos. 8 and 9. Later issues were framed on 10-8-1998. During all these periods the defendants 1, 2 and 3 did not move any application for amendment of written statement up nor had set up any counter claim. They further permitted the recording of the evidence of plaintiffs on the same day i.e. 6-10-1998 but had thereafter filed an objection under Order 6 Rule 17 of the Code of Civil Procedure on the same day seeking relief to restrain the plaintiffs by decree of permanent injunction, from interfering in those defendants possession over their plot No. 9 measuring as described in Para 25 of the said application.