Abhay M. Naik, J:

1. This petition under Article 227 of the Constitution of India has been preferred for quashing the order dated 10-12-09 passed under Order 7 Rule 11, C.P.C.

2. Briefly stated relevant facts are that the plaintiff/petitioner has instituted a suit through power of attorney Ashish Kumar Jain for declaration of title and perpetual injunction against the defendant/respondent alone with allegations that he was a tenant of the father of defendant/respondent in room No. 7 at the rate of Rs. 11/- per month as rent. Electricity charges are paid by him separately to the respondent. Lastly, the rent was paid for the month of December. 2003 on 7-1-2004 under a clear receipt. After the death of father respondent being the heir was offered rent which was not accepted by him. Plaintiff tendered rent for subsequent period by money order which came back on account of refusal on the part of the respondent. There was a leakage in the ceiling which was not permitted by the respondent to be repaired. Instead, he threatened to disconnect the electricity connection and to dispossess the plaintiff forcibly. Hence, the suit that the plaintiff be declared tenant of defendant in room No. 7 and he be restrained permanently from dispossessing the plaintiff as well as from depriving him of facility of electricity.

3. On being served with summons, defendant was directed on 15-2-2006 to submit written statement necessarily on 3-3-2006. On 3-3-2006, defendant did not remain present up to 4 p.m. Consequently, ex parte proceedings were drawn against him. Case was fixed for ex parse proceedings on 27-3-2006. However, later on the defendant on the same day, i.e., on 3-3-00 submitted his written statement as well as counter claim with requisite court fee. On 27-3-2006, copies of the written statement and the counter claim were furnished to the plaintiff and the case was fixed for written statement to counter-claim on 27-4-2006. On this day, the plaintiff did not submit the written statement and instead, sought time on various occasions for the said purpose. On 28-8-06, written statement of counter claim was submitted by the plaintiff. Issues were raised by the learned Trial Judge on 2-11-06 on the basis of plaint as well as counter claim. Plaintiff adduced his evidence which was closed on 13-10-08. Case was, thereafter, fixed on defendant/respondent's evidence. Defendant/respondent submitted his affidavit containing chief examination on 22-1-09. Plaintiff sought time to cross-examine him. Exh. P-2 was marked by respondent on a document in the affidavit under Order 18 Rule 4, C.P.C. Plaintiff submitted an application on 5-5-09 under Order 13, Rule 3. C.P.C with a prayer that the said document being a document of partition may be declared inadmissible for want of proper stamp duty as well as registration. This application was rejected on 8-9-09 and the plaintiff was directed to cross- examine positively the defendant's witnesses on 29-9-2009. This order was challenged in W.P. No. 5383/2009 under Article 227 of the Constitution of India. This Court vide order dated 19-1-2010 dismissed the writ petition with a direction to the Trial Court to decide the civil suit as early as possible preferably within a period of six months.

4. Plaintiff was avoiding cross-examination on defendant's witnesses, therefore, the learned Trial Court cautioned him that right to cross-examine may be closed if the defendant's witnesses are not cross-examined. Despite such cautioning, on 1-10-09 and 9-11-09, plaintiff did not cross-examine the defendant's witnesses and, instead, submitted an application on 19-11-09 under Order 7 Rule 11, C.P.C with allegations that the facts pertaining to counter claim are not mentioned in the written statement. Counter-claim has been submitted separately and independently which is not permissible. This apart, Ashish Kumar Jain has been impleaded in the counter-claim who is not a party to the suit. Therefore, the counter-claim being not permissible may be rejected. Copy of this application is on record as Exh. P-5. It was opposed by the defendant. Learned Trial Judge dismissed the application by the impugned order dated 10-12-09. Hence, the present writ petition.

5. Shri Mohan Babu Mangal and Shri Deepak Khot learned Counsel for the parties made their respective submissions which have been duly considered.

6. Reliance by learned Counsel for the petitioner is placed on the decision of the Hon'ble Supreme Court of India in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, (2003) 7 SCC 350, to contend that separate counter claim is not permissible in law. In the case of Ramesh Chand Ardawatiya (supra), no written statement was filed by the defendant. Paragraph 26 from the judgement is being quoted below for ready reference :

"26. A perusal of the above said provisions shows that it is the Amendment Act of 1976, which has conferred a statutory right on a defendant to file a counter-claim. The relevant words of Rule 6-A are

"A defendant in a suit may in addition to his right of pleading a set-off under Rule 6, .... before the defendant has delivered his defence or before the time limited for delivering his defence has expired ......

These words go to show that a pleading by way of counter-claim runs with the right of filing a written statement and that such right to set up a counter claim is in addition to the right of pleading a set-off conferred by Rule 6. A set off has to be pleaded in the written statement. The counter claim must necessarily find its place in the written statement. Once the right of the defendant to file written statement has been lost or the time limited for delivery of the defence has expired then neither can the written statement be filed as of right nor a counter claim can be allowed to be raised, for the counter-claim under Rule 6-A must find its place in the written statement. The Court has a discretion to permit a written statement being filed belatedly and, therefore, has a discretion also to permit a written statement containing a plea in the nature of set- off or counter claim being filed belatedly but needless to say such discretion shall be exercised in a reasonable manner keeping in view all the facts and circumstances of the case including the conduct of the defendant, and the fact whether a belated leave of the Court would cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time."

In the case in hand, learned Trial Judge had fixed 3-3-06 for submission of written statement. Before expiry of time for submission of the written statement, defendant submitted written statement with a specific mention in Paragraph 3 of the written statement that counter claim is also being duly submitted. Copy of the written statement as well as of counter claim were furnished to the plaintiff on 27-3-2006. Issues were also raised by the learned Trial Judge taking into consideration the plaint, written statement, counter- claim and written statement to counter claim. Thereafter, the plaintiff/petitioner adduced the evidence in the light of averments contained in the plaint as well as in the counter claim. Written statement as well as counter claim were submitted before expiry of the date fixed by the Trial Court for filing of written statement and there was no delay on the part of the defendant. Thus, the decision in the case of Ramesh Chand Ardawatiya (supra). being distinguishable on facts cannot be invoked by the petitioner.

7. Shri Mangal, learned Counsel for the petitioner, submitted that the right of the defendant to submit written statement was closed and the learned Trial Judge had no power to review his order on closure of defendant's right to submit written statement. Reliance for this purpose is placed on Lalji Vs. Naru, 1982 MPWN SN 62 and Nathilal Vs. Ramkali Devi, 1981 (II) MPWN 231.

8. It has already been observed in the preceding paragraphs that the learned Trial Judge had on 15-2-2006 fixed the 3-3-06 for filing the written statement necessarily. On perusal of the order sheet dated 3-3-06, it is observed that the defendant was absent till 4 p.m. and, therefore, ex parte proceedings were drawn against him and the case was fixed for plaintiffs ex parte evidence on 27-3-2006. A sentence appears to have been inserted by adding that right of defendant to submit written statement is closed. This sentence apparently appears to have been added subsequently which does not contain initial of the learned Presiding Judge. This apart, the defendant was required to submit written statement on 3-3-06. It is mentioned in the order sheet dated 3-3-06 at later stage after fixing the case for ex parte evidence, that the defendant has submitted counter claim with Court fee and the case was fixed for written statement to counter claim on 27-3-06. Written statement of the defendant as well as counter claim both are on record having endorsement about their filing on 3-3-06. Thus, it is well established that the written statement as well as counter claim both were submitted before expiry of the date fixed by the learned Trial Judge for filing written statement. On 27-3-2006, copies of the written statement and the counter claim were furnished to the plaintiff which were accepted by him. Time was sought for submission of the written statement to counter claim on various occasions and the written statement was ultimately filed. Issues were raised on the basis of pleadings contained in the plaint, written statement, counter-claim and written statement to counter claim. Plaintiff's evidence was duly closed. Thereafter, during the defendant's evidence an objection was raised about the document which was rejected. Plaintiff preferred W.P. No. 5383/2009. No objection was raised even before this Court in the said writ petition about the written statement having taken on record despite closure of defendant's right. Thus, in the totality of the facts and circumstances, this Court does not find any illegality in the consideration of written statement as well as of counter claim by the learned Trial Judge which was submitted before expiry of the date fixed by the learned Trial Court for filing of the written statement. The decision of this Court in W.P. No. 5383/2009 has no fatal effect in the facts and circumstances of the present case, more so, when no objection was raised in the said writ petition about taking on record the written statement and counter claim by the Trial Court on 3-3-06.

9. Further contention of the learned Counsel for the petitioner is that the defendant has claimed relief in the counter claim not against the plaintiff alone but also against Ashish Kumar Jain joining him as defendant No. 2 in the counter claim. Reliance for this purpose is placed on Division Bench decision of this Court in the case of Mukund Lal and another Vs. Ghanshyam and others, 2009(3) M.P.H.T. 265 (DB) = 2009 (3) MPLJ 239. This Court has observed :

"6....... It is apparent from the bare reading of aforesaid provision that counter-claim is maintainable by defendants against the claim of the plaintiff not inter se defendants. Same is the view taken by this Court in Udhavas Tyagi Vs. Srimurthi Eadhakrishna Mandir. Dehrighat (supra) and by High Court of Patna in Hem Narain Thakur Vs. Deo Kant Mishra and others (supra). We have no hesitation to hold that counter-claim filed by defendant Nos. 3 to 11 as against defendant Nos. 1 and 2, 15 and 16 could not be said to he maintainable under Order 8 Rule 6-A of Civil Procedure Code.

10. Relevant portion of sub-rule (1) of Rule 6-A of Order 8, C.P.C is as follows :-

"Rule 6-A. Counter-claim by defendant.

(l) 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."

(Note : Underlined by this Court)

Perusal of the aforesaid goes to show that the Legislature has provided the right of counter claim against the claim of the plaintiff and not against the plaintiff alone. Plaintiffs claim in the suit is for declaration that he be declared a tenant in occupation of the suit premises and defendant be restrained from depriving him of facility of electricity and evicting him forcibly.

11. The suit has admittedly been instituted by Ashish Kumar Jain in the capacity of Power of Attorney of the plaintiff which has been signed and verified by Ashish Kumar Jain. Affidavit has been submitted in support of the plaint by Ashish Kumar Jain as Power of Attorney of the plaintiff. Vakalatnama has also been signed by Ashish Kumar Jain to engage a lawyer on behalf of the plaintiff. Plaintiff did not appear personally in the witness box but it was Ashish Kumar Jain who has been examined on behalf of the plaintiff.

12. Defendant in the counter claim has pleaded that the suit premises is a non-residential premises and its portion has been sublet to Ashish Kumar Jain. Eviction has been sought on ground under Section 12 (1) (b) of M.P. Accommodation Control Act, 1961. This apart, eviction has also been sought on the bonafide non-residential need of the defendant on the ground that he is running a Computer Coaching Centre in rented accommodation and he needs the suit premises bonafide for his own business. In the totality of the facts and circumstances of the case, Ashish Jain (a) Ashish Kumar Jain is not absolutely stranger to the plaintiff because he appears to be de facto plaintiff who has instituted a suit under his own signatures and is conducting the suit in place of the plaintiff. Relief against him has not been sought independently. He is virtually related to the plaintiff with reference to the suit premises and the averments made in the counter claim are to be construed in this context. Thus, the relief in the counter claim is not claimed merely against the co-defendant independent of plaintiff.

13. Hon'ble Supreme Court of India in the case of Rohit Singh and others Vs. State of Bihar (now State of Jharkhand), AIR 2007 SC 10, has observed in Paragraph , which is quoted below for ready reference :

"18. Normally, a counter-claim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter-claim has -necessarily to be dire

cted against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against co-defendants in the suit. But a counter-claim directed solely against the co-defendants cannot be maintained." Considering the law settled by the Hon'ble Apex Court, the counter claim against the plaintiff as well as Ashish Kumar Jain is found maintainable. Impugned order is, thus, found to have suffered from no infirmity. 14. It may further be observed that the plaintiff did not raise timely objection about Order 7 Rule 11, C.P.C. He permitted the suit to proceed with evidence despite the fact that issues were raised by the learned Trial Judge in the light of the pleadings contained in the plaint, written statement, counter- claim and written statement to counter claim. He adduced evidence in the light of the pleadings contained in the aforesaid and after closure of evidence. defendant has also been partially cross-examined. Apart from it, any such objection was never raised even before this Court when the plaintiff approached this Court in W.P. No. 5383/2009. This Court had even at earlier occasion, directed for speedy disposal preferably within a period six months. Plaintiff instead of co-operating has raised the objection under Order 7 Rule 11, C.P.C at quite belated stage in order to delay the trial. This being so, the present writ petition is dismissed with cost of Rs. 5,000/- with a direction to the Trial Court to decide the suit expeditiously preferably within a period of four months from the date of receipt of record along with the copy of this order. Writ petition dismissed.