The timing of accrual of cause of action for filing a counter-claim and the discretionary nature of the power under Article 227 of the Constitution of India were the central legal points established in the judgment.

Anand Pathak, J.

1. The present writ petition under Article 227 of the Constitution of India has been preferred by the petitioner being crestfallen by the order dated 21/12/2016 (Annexure P/1) and order dated 18/01/2017 (Annexure P/2) passed by Fifth Additional Civil Judge Class-I, Gwalior to the Court of First Civil Judge, Class-I, Gwalior whereby application under Section 151 of CPC for recalling the order dated 21/12/2016 (Annexure P/1) wherein application under Order 6, Rule 17 CPC preferred at the instance of petitioner/defendant for incorporating counter-claim in the written statement has been rejected.

2. Facts of the case in brief are that respondent/plaintiff has preferred a suit for arrears of rent and eviction against the present petitioner/defendant in 2014. Present petitioner filed written statement on 29/09/2014. Later on, petitioner/defendant preferred an application under Order 6, Rule 17 r/w Section 151 of CPC on 30/11/2016 containing pleadings of counter claim as mentioned in the application. The said application got rejected vide order dated 21/12/2016, thereafter application under Section 151 CPC met the same fate, therefore, petitioner/defendant is before this Court under Article 227 of the Constitution of India.

3. According to learned counsel for the petitioner, trial Court has erred in passing the impugned orders rejecting the applications preferred by the petitioner as the said amendment can be incorporated at any stage of trial. He referred the judgment rendered by Hon'ble Apex Court in the matter of Vijay Prakash Jarath v. Tej Prakash Jarath, (2016) 11 SCC 800 and prayed for setting aside the orders under challenge.

4. Per contra, learned counsel for the respondent opposed the prayer made by the petitioner and submit that no case for interference is made out and prayed for dismissal of the same. He relied upon the judgment of this Court in the matter of Amanulla Khan v. Zaheer Khan, 2001 (1) MPWN 140.

5. Heard the learned counsel for the parties and perused the documents.

6. The orders under challenge are in respect of counterclaim which is intended to be incorporated by the petitioner in the matter. Counter-claim by defendant is covered by the provisions as contained in Order 8, Rule 6 A of CPC which is being reproduced as under:-

"[6A. 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 have the 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 counterclaim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.

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

7. A perusal of Sub Rule (1) of Rule 6A of the Order 8 leaves no room for any doubt that the cause of action in respect of which a counter-claim can be filed, accrues to the defendant before he delivers his defence in the matter, or before defendant has filed written statement. Therefore, in the light of the said provisions of law it is to be seen whether the cause of action has been accrued to the defendant to file counter-claim or not. From perusal of the application under Order 6, Rule 17 r/w Section 151 CPC vide Annexure P/6 preferred by the petitioner/defendant, it appears that petitioner has referred