SANJAY MISRA, J. - (1.) HEARD Sri Ramendra Asthana learned Counsel for the petitioner.
(2.) ACCORDING to the plaintiff petitioners the claim of the plaintiff for permanent injunction in the property in question was raised in Civil suit No. 639 of 1999, Avneesh Kumar and others v. Ravi Datt and another. He states that the defendants have filed a Suit No. 545 of 2000, Ravi Datt v. Avneesh Kumar and others, relating to the very same property praying for mandatory injunction and possession of the property which was in effect a cross suit filed by the re­spondents. According to Sri Asthana the petitioner as also the respondent filed their their written statements in each others suits whereas the respondents also filed counter claim on 14.2.2006 after the plaintiff-petitioner had amended his plaint on 25.11.2004. Whereafter the respondent withdrew their suit No. 545 of 2000 on 1.11.2006. Sri Asthana states that due to a subsequent development over the property in question the petitioners being plaintiffs of Suit No. 639 of 1999 had amended their plaint by seeking demolition of certain construction over the property in question alleged to have been raised by the defendants of the suit who are respondents in the present writ petition. The petitioner-plaintiff filed an application for rejecting the counter claim which has been considered by the Trial Court and rejected by the impugned order dated 12.3.2007 (Annexure 10 to the writ petition). The Revisional Court has also rejected the Revision filed by the petitioners by the impugned order dated 28.8.2008 (Annexure 11 to the writ petition). Learned counsel for the petitioner has submitted that the provisions of Order VIII, Rule 6-A of the Code of Civil Procedure are very clear and that the defendants could not file a counter claim in a suit after they had filed their written statement or the time limit for filing written statement has expired. According to him the written statement had been filed by the defendants on 7.4.2000 in the suit No. 639 of 1999 and it was much after filing of the written statement that they have come up with, the counter claim on 14.2.2006 and therefore the impugned orders being violative of Rule 6-A of Order VIII, CPC are liable to be set aside. He has placed reliance on the provisions of Order XXIII, Rule 1 (4) to state that when a plaintiff files any suit or withdraws from any suit or part of a claim without permission of the Court he shall be pre­cluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(3.) HAVING considered the submission of learned Counsel for the petitioner and perused the impugned orders the Courts below have rejected the applica­tion of the petitioner plaintiff on the ground that the plaintiff had amended his plaint by seeking a further relief of demolition of certain construction lying over the property in question. The Courts below were of the view that once the plaint was amended the right of the defendants to file additional written statement against the amended part of the plaint came into effect and there­fore the provisions of Rule 6-A of Order VIII, CPC would entitle the defendants to file their counter claim either before or along with the written statement to the amended plaint, or within limited time available to the defendant to file his written statement. In the present case it is not disputed that the plaintiff has amended his plaint on 25.11.2004 (Annexure 5 to the writ petition) and the amendment was incorporated on 1.12.2004. The written statement to the una-mended plaint has admittedly had been filed on 7.4.2000 by the defendants much prior to such amendment in the plaint. Consequently, by virtue of the pro­visions of Rule 6-A of Order VIII, CPC the right of the defendant stood revived in so far as the amended part of the plaint is concerned. Since he could file a written statement against that part of the amended plaint he could also prefer a counter claim either before or along with the written statement to such amended plaint.;