HONBLE SIBGHAT ULLAH KHAN,J. - (1.) HEARD learned counsel for the petitioners.
(2.) NO one appeared on behalf of contesting respondent no.3, even though the case was taken up in revised list. Petitioners are plaintiffs in O.S. no.77 of 1996. Relief claimed in the suit is for permanent prohibitory injunction seeking to restrain the defendant respondent no.3 from interfering in the possession of the plaintiffs petitioners over the shop in dispute. Defendant filed written statement on 23.9.2003 thereafter he filed application on 22.5.2006 seeking amendment in the written statement and incorporating counter claim therein. It was stated that on 14.4.2006 plaintiffs forcibly evicted the defendant. In the written statement it was stated that defendant was in possession of the shop in dispute since 1.1.1978 and had matured his title after 12 years therefrom. In the application for amendment of written statement/counter claim prayer for restoration of possession was made. The trial court/civil judge(J.D.) West Hardoi through order dated 9.4.2007 allowed the amendment in the written statement/counter claim. Against the said order plaintiffs petitioners filed Civil Revision no.59 of 2007 which was dismissed by A.D.J. Court no.1 Hardoi on 1.8.2009 hence this writ petition.
(3.) LEARNED counsel for the plaintiffs petitioners has argued that in view of Order VIII Rule 6 -A C.P.C. as inserted w.e.f. 1.2.1977 counter claim may be filed in respect of cause of action which accrued to the defendant before filing of written statement. Order 8 Rule 6 -A(1) is quoted below: "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." Learned counsel in respect of his contention has cited following authorities. 1. Mahendra Kumar V. State of M.P. AIR 1987 SC 1395 2. Jag Mohan Chawala V. Dera Radha Swami Satsang AIR 1996 SC 2222 3. Shanti Rani Das Dewanjee V. Dinesh Chandra Dey AIR 1997 SC 3985 4.Ganesh Swaroop Tandon V. Anmchal Kumar Tandon 2007(66) ALR 70(All HC) ;