A. P. RAVANI, J. ( 1 ) WHAT is rejected by the trial Court ? Is it an application for permitting to file counter-claim under the provisions of Order 8 Rule 6a of the Civil Procedure Code or an application for inserting amendment in a written statement under Order 6 Rule 17 of the Civil Procedure Code ? Answer to this question will determine the fate of this revision application. ( 2 ) RESPONDENT No. 1 filed Miscellaneous Application and prayed that he be granted probate and or letters of administration with Will annexed in respect of Will dated 5/12/1979 executed by deceased Shri Ramanand Sadhu. The application was contested by the petitioner herein and by respondent No. 2. Hence the application was converted into suit as per order dated 3/07/1980 and it has been numbered as Civil Suit No. 2096 of 1980. The petitioner filed his written statement and disclosed his defence on 12/03/1981 Thereafter the trial Court framed issues and proceeded to record evidence of the parties. Examination of the plaintiff was over on 22/03/1984 On Marc 26/03/1984 the petitioner preferred two applications Exh. 42 and Exh. 44. By Exh. 42 he prayed that an additional issue be framed as follows:"does the defendant No. 2 prove the Will dated December 15 1979 executed in his favour and as such is he entitled to probate or limited letters of administration as prayed for in written statement Exh. 17 ?"by Exh. 44 which is purported to be an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure he prayed to insert averment in para 17 of the written statement to the effect that he has become entitled to obtain probate or letters of administration with Will annexed. Both the aforesaid applications have been rejected by the trial Court by two separate orders. Against the aforesaid orders rejecting the applications passed by the trial Court this revision application is filed by the petitioner-original defendant No. 2. ( 3 ) IT is contended that the application for amendment could have been filed at any stage of the proceedings and the same should not have been rejected by the trial Court. Against the aforesaid orders rejecting the applications passed by the trial Court this revision application is filed by the petitioner-original defendant No. 2. ( 3 ) IT is contended that the application for amendment could have been filed at any stage of the proceedings and the same should not have been rejected by the trial Court. The trial Court committed gross error and or illegality in holding that defendant No. 2 was trying to fill up the lacuna left out in the defence and in holding that since the application was given at a late stage it was required to be rejected. In the submission of the learned Counsel for the petitioner necessary averments with regard to the Will dated 15/12/1979 executed by deceased Shri Ramanand Sadhu in favour of the petitioner (defendant No. 2) have already been made in the written statement and therefore there was no question of the plaintiff being prejudiced or being taken by surprise. Therefore the learned Counsel for the petitioner submits that the trial Court has failed to exercise the jurisdiction vested in it. At any rate in his submission the trial Court has committed grave irregularity and/or illegality in rejecting the applications for amendment. It is further submitted that once the amendment is granted another application for raising additional issue ought to have been granted as a necessary corollary. The contention raised by the petitioner cannot be accepted for the following reasons. ( 4 ) RESPONDENT No. 1-Original plaintiff filed application for obtaining letters of administration under the Will dated 5/12/1979 This application has been opposed by the petitioner as well as respondent No. 2 Therefore it has been converted into suit. In this suit cause of action if any in favour of the plaintiff is based on the Will dated 5/12/1979 If the plaintiff proves the Will and satisfies the Court about his claim for grant of letters of administration as prayed for the plaintiff may succeed and may be granted th the prayer made by him in the application. In this proceeding the petitioner-defendant No. 2 can at the most contest the claim of the plaintiff for grant of letters of administration. Moreover the petitioner defendant may claim that under the same Will not the plaintiff but the petitioner-defendant is entitled to get the letters of administration. In this proceeding the petitioner-defendant No. 2 can at the most contest the claim of the plaintiff for grant of letters of administration. Moreover the petitioner defendant may claim that under the same Will not the plaintiff but the petitioner-defendant is entitled to get the letters of administration. But it is difficult to conceive that in this very proceeding the petitioner-defendant can be permitted to set up another Will and claim that on the basis of another Will he be granted probate and/or letter of administration with Will annexed This could not have been done and therefore the trial Court was justified in rejecting both the applications by the impugned orders. ( 5 ) THE learned Counsel for the petitioner submitted that there was no question of filling in any lacuna by the petitioner-defendant inasmuch 25 reference to Will dated 15/12/1979 executed by deceased Ramanand Sadhu in his favour has already been made in para 17 of the written statement and that the petitioner only wanted to insert the averment that in respect of the Will dated 15/12/1979 he be granted probate and/or letters of administration with Will annexed. According to him this would save public time as well as avoid multiplicity of proceedings. The argument cannot be accepted. What is stated in para 17 of the written statement is nothing but the defence set up against the claim of the plaintiff. The plaintiff claimed letters of administration with Will annexed on the basis of the Will dated 5/12/1979 The petitioner defendant No. 2 submitted that it was not the last Will of deceased. According to the petitioner the last Will of the deceased was dated 15/12/1979 and therefore the claim of the plaintiff should be rejected. Reference to Will dated 15/12/1979 made in para 17 of the written statement would not give any right to the defendant to file counter-claim in this proceeding. The application though styled as an application for amendment under Order 6 Rule 17 is in substance an application for permitting the petitioner-defendant No. 2 to file counter-claim. In the very nature of the proceedings instituted by the plaintiff there is no scope for any counter-claim being set up by the petitioner-defendant based on altogether different Will. The application though styled as an application for amendment under Order 6 Rule 17 is in substance an application for permitting the petitioner-defendant No. 2 to file counter-claim. In the very nature of the proceedings instituted by the plaintiff there is no scope for any counter-claim being set up by the petitioner-defendant based on altogether different Will. The application submitted by the petitioner is not an application for simple amendment as contemplated under Order 6 Rule 17 But as stated hereinabove it is an application for permitting to file counter-claim. ( 6 ) BY an application under Order 6 Rule 17 a party may be permitted to alter or amend his pleadings for the purpose of determining the real question in controversy between the parties. In this proceeding instituted by respondent No. 1 plaintiff the question in controversy between the parties is the genuineness or otherwise of the Will dated 5/12/1979 Therefore the question is Is the plaintiff entitled to probate and/or letters of administration under the Will ? For determining this question the pleadings are already there. Necessary averments have already been made by the petitioner-defendant in his written statement. The petitioner-defendant No. 2 has averred that the Will dated 5/12/1979 is not the last Will of the deceased and that there is another Will dated 15/12/1979 executed by the deceased in his favour. In this proceeding no other question except the genuineness or otherwise of the Will dated 5/12/1979 and the question as so whether the plaintiff is entitled to claim letters of administration with Will annexed is required to be determined. Therefore what is sought to be inserted by the application purported to be an amendment application under the provisions of Order 6 Rule 17 is something the real question in controversy between the parties. Once it is found that the application is not an application for amendment of the written statement as claimed by the petitioner and that the same is not necessary for the purpose of determining the real question in controversy between the parties the application could have been rejected on this ground alone. Even so the trial Court has considered as to whether the same could have been granted as an application for permitting counter-claim or not. On this count also the trial Court has come to the conclusion that the application is required to be rejected. And in my opinion rightly. Even so the trial Court has considered as to whether the same could have been granted as an application for permitting counter-claim or not. On this count also the trial Court has come to the conclusion that the application is required to be rejected. And in my opinion rightly. ( 7 ) BEFORE an application for counter-claim is entertained certain conditions are required to be complied with by the applicant. In this regard the legal position may be examined. Set-off is a plea in defence pure and simple which by adjustment would wipe-off or reduce the plaintiffs claim. By way of amendment in Civil Procedure Code introduced in the year 1976 set-off may be understood in wider sense of counter-claim also. Therefore it may be a defence and a counterclaim combined. To the extent of the plaintiffs claim it may be a defence and it may be a counter-claim by the defendant in the suit itself for the balance of the amount. Prior to the amendment in the year 1976 of the Civil Procedure Code strictly speaking counter-claim was not permissible at all. Provisions with regard to counter-claim have been inserted in Order 8 Rules 6a to 6f. Order 8 Rule 6a enables the defendant to file counter-claim against the claim of the plaintiff. That should be in respect of a cause of action accruing to the defendant against the plaintiff. Counter-claim is required to be filed either before or after the filing of the suit but before the defendant has delivered his defence or before the time for delivering the defence has expired. Counter-claim should not exceed the pecuniary jurisdictional limits of the Court. It 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 counter-claim. Original plaintiff would be at liberty to file written statement in answer to the counter-ciaim and the counter-claim is to see treated as a plaint arid to be governed by the rules applicable to suits. As per the provisions of Order 8 Rule 6b defendant is required to state specifically that he does so by way of counter-claim. If the original plaintiff contends that the claim raised by the defendant could not be disposed of by way of counterclaim the Court may exclude the same (Rule 6c ). As per the provisions of Order 8 Rule 6b defendant is required to state specifically that he does so by way of counter-claim. If the original plaintiff contends that the claim raised by the defendant could not be disposed of by way of counterclaim the Court may exclude the same (Rule 6c ). Where a counter-claim is put up and entertained and the original suit is stayed discontinued or dismissed the counter-claim may nevertheless be proceeded with (Rule 6d ). If the plaintiff defaults in putting in a reply to the counterclaim made by defendant the Court may pronounce the judgment against the plaintiff in relation to the counter-claim made against him or may pass any other order as it thinks fit (Rule 6e ). Where a counter-claim succeeds the Court may grant relief in favour of the defendant (Rule 6f ). Rules relating to written statement are to apply to written statement filed in answer to counter-claim (Rule 6g ). ( 8 ) THE aforesaid resume of the new provisions makes it clear that the effect of a counter-claim is to place the plaintiff in the position of the defendant. He must defend himself and put in a reply thereto or suffer judgment in relation to the counter claim. Counter-claim is nothing but an independent suit. All that is being done by the new provisions is that it (i. e. counter-claim) is required to be heard together with the suit enable the Court to pronounce one judgment. Provisions of Rule 6c empowers the Court to exclude a counter-claim and order the defendant to file independent suit in respect of the claim made by him. Wherever the Court finds that it is embarrassing or the filing of the counter-claim is not fair to the plaintiff or where it is likely to create complications and prolong the trial the Court can and may ask the defendant to agitate the claim made by him by filing an independent suit. ( 9 ) HAVING regard to the aforesaid provisions of the Civil Procedure Code regarding counter-claim different factors and circumstances may be examined. An application for amendment of pleadings may be filed at any stage and the same may be allowed also by the Court at any stage provided it is necessary (for the purpose of determining the real question in controversy between the parties. ). An application for amendment of pleadings may be filed at any stage and the same may be allowed also by the Court at any stage provided it is necessary (for the purpose of determining the real question in controversy between the parties. ). On the other hand counterclaim can be put up by the defendant either before or after filing of the suit but before the defendant has delivered his defence or before the time limit for delivering his defence has expired. The relevant provisions of Rule 6 (1) clearly indicates and particularly the words but before leaves no room for doubt that the counter-claim has to be filed before the time limit for delivering the defence has expired. Once this time limit has expired counter-claim cannot be filed and thereafter it may not be entertained by the Court. The Court may have discretion to permit counter-claim even at a later stage. But this discretion permitting to file counter-claim should not be exercised as far as possible. By not permitting the defendant to file counter-claim no injustice is likely to be caused to him. He can as well file a separate suit and agitate his claim. On the other hand permitting him to file counter-claim after the period indicated in the Rule is likely to cause embarrassment to the plaintiff and is likely to delay further proceeding of the suit. Therefore the Court should be reluctant and at any rate should not be as liberal as in case of an application for amendment in permitting the defendant to file counter-claim after the specified time limit. ( 10 ) COUNTER-CLAIM can he permitted when the plaintiff and the defendants feel in the same character. In the instant case once the counter-claim is permitted the Court will have to decide the genuineness of the Will dated 15/12/1979 Whether to grant probate and or letters of administration as prayed for by the defendant under the Will dated 15/12/1979 will not be question to be determined between the plaintiff and the defendant alone. Again public notice will have to be issued. It may be that the plaintiff may not be in a position to contest the another Will set up by the defendant. But there may be some other pher persons who may contest the genuineness of the Will and also the right of the defendent to obtain probate and or letters of administration. It may be that the plaintiff may not be in a position to contest the another Will set up by the defendant. But there may be some other pher persons who may contest the genuineness of the Will and also the right of the defendent to obtain probate and or letters of administration. Therefore it is obvious that once counter-claim based on the Will dated 15/12/1979 is allowed the proceedings will not be between the same parties. Therefore also in the instant case the counter-claim could not have been permitted. ( 11 ) THE provisions of Rule 6c empower the Court to exclude counter-claim and direct the defendant to file an independent suit. In this case had the amendment been allowed the trial Court would have been forced to resort to the provisions of Order 8 Rule 6c at a later stage. Once the amendment is allowed and the defendant is permitted to set up the Will dated 15/12/1979 as counter-claim the very nature of the proceedings would have been changed. In fact there would have been two proceedings one initiated by the original plaintiff based on the Will dated December 5 1979 and another initiated by way of counter-claim by the defendant on the basis of the Will dated 15/12/1979 Both would be separate claims based on two separate Wills. For both of them cause of action for claiming probate and/or letters of administration with Will annexed would be entirely different. It may be that for both of them the defendants also may be different. It cannot he assumed without giving public notice that there would be no other contestant to the Will dated 15/12/1979 set up by the petitioner-defendant. ( 12 ) THE trial Court has rightly relied upon the decision of the Bombay High Court in the case of Venidas Nemchand v. Bai Champabai reported in 31 BLR 1014. Therein it was held that if on a petition for probate of a Will the caveater relies on another Will of the testator it is obligatory on the caveator to propound such Will by separate petition. For. the reasons stated hereinabove I am in respectful agreement with the principles laid down by the Bombay High Court. Therein it was held that if on a petition for probate of a Will the caveater relies on another Will of the testator it is obligatory on the caveator to propound such Will by separate petition. For. the reasons stated hereinabove I am in respectful agreement with the principles laid down by the Bombay High Court. True when the Bombay High Court decided the aforesaid case the newly inserted provisions of Order 8 Rules 6a to 6c were not on the statute book But as indicated hereinabove this insertion of new provisions in the statute book does not make any difference as far as the cases where the caveator relies on another Will of the testator and prays that he be granted probate and/or letters of administration with Will annexed on the basis of an altogether different Will. ( 13 ) IN the instant case the application was not for amendment of the written statement. It was in fact and in substance an application for permitting the petitioner-defendant to file counter-claim. Technically speaking the application even if considered as an application for permitting to file counter-claim was liable to be rejected in view of the provisions of Order 8 Rule 6b. Rule 6b provides that the defendant himself in his written statement should specifically state that he does so by way of counter-claim. Even by the proposed amendment by application Exh. 44 the petitioner-defendant No. 2 does not state that he puts up the claim as and by way of counter-claim. All that he prayed by way of amendment is to insert to the written statement to the effect that accordingly defendant No. 2 has become entitled to claim probate and/or letters of administration. Thus even by way of amendment he has not stated specifically that he does so by way of counter-claim. Therefore also the plea of counter-claim under the amended provisions of Order 8 Rule 6b is required to be rejected. However as stated hereinabove not on this technical ground but on merits the counter-claim sought to be set use by the petitioner could not have been permitted in this proceedings. The orders passed by the trial Court are not required to be interfered with. ( 14 ) IN above view of the matter the revision application is required to be rejected. Hence rejected. Rule discharged. Interim relief granted earlier stands vacated. (ATP) Application dismissed. .