ORAL ORDER

1. The present petition is filed with the following reliefs:

“(A) That this Hon’ble Court be pleased to issue writ of or in the nature of Certiorari, or any other appropriate writ, order or direction directing and quashing the order passed dated 23/1/2023 passed on CMA No.8/2019, passed by the learned Principal Sr.Civil Judge, Deodar (Annexure E) and further be pleased to allowed the CMA No.8/2019 (Annexure D).

(B) That pending admission herein and final disposal of this petition, this Hon’ble Court be pleased to direct the learned trial court to proceed with the counter claim of the petitioners.

C) xxxx”

2. The brief facts of the case, stated in the petition, are such that the respondent no.1 is the original plaintiff who has filed Special Civil Suit No.11/2012 for permanent injunction and declaration; that on notice, the petitioners appeared and contested the suit by filing written statement as well as counter claim at Exh.36 wherein the petitioners have denied the suit of the plaintiff and further sought prayer for rejection of sale deed and also sought other prayers by way of counter claim; that the learned trial court was pleased to grant injunction on 7.11.2014 pursuant to the application at Exh.5 and Exh.37 for maintaining status-quo; thereafter on 12.5.2016, the learned trial court dismissed the suit of the plaintiff for default and observed that there is no counter claim filed by the defendant; that immediately the petitioners filed CMA No.8 of 2019 before the learned trial court praying to proceed with the counter claim in view of Order 8 Rule 6A of the Code of Civil Procedure; that on 19.1.2021 the original plaintiff filed restoration application with delay condonation application and the same was rejected by the learned trial court; on 23.1.2023, the learned trial court rejected the CMA No.8 of 2019 on the ground that restoration application was not preferred. Hence, this petition is filed.

3. Heard learned advocate Mr.Kapadia for the petitioner. He has submitted that the learned trial court, by way of order passed below Exh.1 application in CMA No.8 of 2019 dated 23.1.2023, the learned trial court has considered that the suit was dismissed for default on 12.2.2016 and the present application is filed on 17.10.2019 and therefore the court has found that there is delay of 3 year 8 months and 4 days in filing the present application. But no application for condonation of delay is filed and in the main application, no explanation regarding the delay is given. He has submitted that these observations are totally misconceived and the learned trial court has also not dealt with the application filed by way of CMA No.8 of 2019 in proper context. It is submitted that the application is filed not for the restoration of the counter claim but for proceeding with the counter claim by taking counter claim on board and therefore the application is filed under the provisions of Section 151 and 152 of CPC read with Order 8 Rule 6A and 6D of the CPC. He submits that though the notice is served to the other side, no one is appearing and therefore he has submitted that the counter claim should be proceeded as it was never dismissed by the learned trial Court and therefore he prays to allow this petition.

4. I have considered the submissions made at the bar and also the relevant provisions of Order 8 Rule 6A and 6D of CPC, which read 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 limi