1. Parties are in loggerhead on the same issue before this Court for the second time. The petitioners/plaintiffs filed a suit for declaration and permanent injunction. In the said suit, the respondent No.1 filed a fresh counter claim on 23.12.2005 and on the same date withdrew his earlier counter claim. The Court below permitted the defendant to file second counter claim. Against the order dated 19.1.2006, whereby second counter claim was permitted to be filed, the present petitioners filed WP No.1940/2006. The order of trial Court permitting the defendant to file second counter claim was challenged on the ground that the plaintiffs’ objection was not taken into account and considered by the trial Court. This Court allowed the petition on 5.4.2007 and opined that the petitioners raised a specific objection that counter claim was not maintainable in view of Order 11 Rules 2 and 3 and order 23 Rule 1 (4) CPC. The trial Court erred in not considering the said objection. The matter was remitted back to the trial Court to decide the said application afresh keeping in view the observation made by this Court in WP No.1940/2006.

2. The parties again advanced arguments on application filed under

order 7 Rule 11 CPC. By impugned order dated 9.7.2012, the said application is rejected and counter claim is permitted to be filed.

3. Shri N.K.Gupta, learned counsel for the petitioners submits that the counter claim needs to be treated as a plaint in view of order 8 Rule 6-A(2) CPC. By placing reliance on Order 2 Rule 2 CPC, it is submitted that the defendants’ second counter claim is hit by principle of res judicata. Lastly, it is submitted that as per Order 23 Rule 1 (3) and (4), the Court below has erred in permitting the defendants to file second counter claim. He submits that in absence of permission to file second claim at the time of withdrawal of first claim, filing of second claim was impermissible.

4. Per Contra, Shri Harish Dixit, learned counsel for the respondent No.1 supported the order passed by the Court below. By drawing attention on the order sheets, Annexure P-2, it is submitted that the first counter claim had certain defects. The names of parties were not properly mentioned and, therefore, the trial Court on 7.11.2005 directed the defendants to correct the same. In turn, on 23.12.2005, a proper counter claim with correct details was filed. After filing the second counter claim, earlier claim was not pressed on the same date. In this situation, Shri Dixit submits that order 23 Rule 1 CPC has no application. No other point is pressed by the parties.

5. I have heard learned counsel for the parties and perused the record.

6. In the impugned order, the Court below has recorded that on 7.11.2005, the defendant was directed to furnish complete details of the parties which must include the father’s name and address etc. In turn, the defendant filed a new counter claim on 23.12.2005 and withdrew/not pressed his earlier counter claim. The Court below opined that in the aforesaid circumstances, it is clear that the second counter claim was filed pursuant to the directions of the Court and, therefore, it cannot be assumed that second counter claim cannot be filed.

7. The order sheet dated 23.12.2005, Annexure P-2, shows that a fresh counter claim was filed by the defendants and copy thereof was supplied to the plaintiffs. Lateron, on the same day, the first counter claim was rejected as not pressed. Shri Gupta has not disputed the finding of Court below inasmuch as it is recorded that the Court below itself directed on 7.11.2005 to correct the counter claim. The defendants thought it proper to file a duly typed newcounter claim containing correct details of the parties. Thus, the second counter claim is in fact filed pursuant to the directions of the Court dated 7.11.2005.

8. Order 23 Rule 1 (3) and (4) CPC reads as under :-

“Order 23 Rule 1 (3) - Where the Court is satisfied,—

(a) that a suit must fail by reason of some formal