ORAL JUDGMENT 1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India praying for quashing and setting aside the judgment and order passed by the learned Civil Judge (S.D.) Veraval below an application Ex.46 dated 10.4.2003 in Regular Civil Suit No.509 of 1999 and the judgment and order passed by the 2nd Extra Assistant Judge, Veraval in Civil Misc. Appeal No.31 of 2003 dated 13.7.2004. The petitioner has also prayed for the declaration that in view of the order passed below Ex.57 dated 27.6.2003 by the learned Civil Judge (S.D.) Veraval, proceeding of Regular Civil Suit No.509 of 1999 stands concluded and the learned Civil Judge cannot act upon the counter claim of the respondent preferred on 27.6.2003 in Regular Civil Suit No.509 of 1999. 2. This Court has issued notice on 2.8.2004 and granted interim relief in terms of para 13(D) of the petition whereby the operation, implementation and execution of the judgment and order passed by the learned Civil Judge (S.D.) Veraval below an application Ex.46 dated 10.4.2003 in Regular Civil Suit No.509 of 1999 and the judgment and order passed by the 2nd Extra Assistant Judge, Veraval in Civil Misc. Appeal No.31 of 2003 dated 13.7.2004 was stayed. 3. Heard Mr.P.J.Kanabar, learned advocate appearing for the petitioner and Ms Farhana Y. Mansuri, learned advocate appearing for the respondent. 4. It is the case of the petitioner that the petitioner filed Regular Civil Suit No.509 of 1999 in the Court of Civil Judge (S.D.), Veraval on 4.10.1999. Since the defendants have not filed Written Statement within the time granted by the trial Court upto 5.1.2000, the learned trial Judge ordered that the suit be proceeded exparte vide his order dated 15.2.2001. 5. The respondent thereafter after getting the stage of filing Written Statement revived, filed Written Statement at Ex.48 on 4.10.2001 which was permitted to be taken on record by the learned trial Judge on 7.2.2003. The respondent also applied for an interim injunction against the petitioner vide application Ex.46 on 31.3.2003 praying inter alia that the petitioner be restrained from stopping the respondent from acting as Munjavar in the Dargah and doing agricultural work. The learned trial Judge in view of the order passed in Civil Misc. Appeal No.19 of 2001 dated 19.9.2002 allowed the said application Ex.46 vide order dated 10.4.2003. 6. The learned trial Judge in view of the order passed in Civil Misc. Appeal No.19 of 2001 dated 19.9.2002 allowed the said application Ex.46 vide order dated 10.4.2003. 6. The suit filed by the petitioner was likely to be failed on a technical ground that the petitioner did not join the State of Gujarat as party defendant. Since the suit was filed without serving a statutory notice under Section 80 of the Code, the petitioner applied for withdrawal of the suit with a liberty to file a fresh suit vide application Ex.57 on 25.6.2003. The said suit was accordingly withdrawn on 27.6.2003. Since on the same day i.e. 27.6.2003 the respondent submitted a counter claim vide application Ex.58 the learned trial Judge allowed the said application. 7. Before such application for counter claim was entertained by the learned trial Judge, the petitioner challenged the order passed by the learned trial Judge below application Ex.46 by way of preferring Civil Misc. Appeal No.31 of 2003 in the Court of 2nd Extra Assistant Judge, Veraval which has also been dismissed on 13.7.2004. 8. In the above background of the case, the present petition is filed by the petitioner raising a pure question of law that once the suit having been disposed of as withdrawn and once the counter claim having not been filed alongwith the Written Statement can the Court below entertain such counter claim. 9. Mr. P. J. Kanabar, learned advocate appearing for the petitioner has drawn the Court's attention to the provisions contained in Order-VIII Rule-6A of the Civil Procedure Code, 1908 which reads 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 limits of the jurisdiction of the Court. (2) Such counter-claim 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. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. Plain reading of the above rule makes it very clear that the counter-claim should be filed by the defendant before he delivered his defence or before the time limited for delivering his defence has expired. Admittedly in the present case the Written Statement was filed on 4.10.2001 and it was taken on record on 7.2.2003. Alongwith the Written Statement, the defendant has not filed counter-claim. It was filed only on 27.6.2003 when the suit was withdrawn. It is true that Rule-6D stipulates that if in any case the defendant sets up a counter-claim, and if the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. Condition precedent is however that the counter-claim should have been filed as contemplated in provisions contained in Rule-6A of Order- VIII. It is also true that the Rule-9 permits to raise subsequent pleadings, provided leave of the Court is obtained. Here in the present case no leave of the Court is obtained before filing the counter-claim. 1. The issue has come up before the Hon'ble Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, reported in AIR 2003 SC 2508, wherein it is observed 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 R. 6A are- "A defendant in a suit may, in addition to his right of pleading a set-off under R. 6, .............before the defendant has delivered or before the time limited for delivery of 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 R. 6. A set-off has to be pleaded in the written statement. 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 R. 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 the written statement can be filed as of right nor a counter-claim can be allowed to be raised, for the Counter-claim under R. 6A 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. In view of this clear pronouncement of the Hon'ble Supreme Court Mr.Kanabar has submitted that since the counter-claim has been filed subsequent to the filing of the Written Statement leave of the Court was a must. Since the counter-claim was wrongly entertained by the trial Court, the injunction application as well as the appeal preferred against the order passed under injunction application both are required to be quashed and set aside. 2. Ms.Farhana Mansuri, learned advocate appearing for the respondent, on the other hand, has submitted that after filing of the suit by the petitioner on 4.10.1999 the learned trial Court has issued summons to the respondent. The right of filing of the Written Statement was closed on 15.2.2001 by the trial Court. Thereafter, the respondent by making application an Ex.28 requested for reopening of the right of filing Written Statement to make the hearing biparte and application came to be granted on 7.2.2003 and the Written Statement filed vide Ex.48 on 4.10.2001 was taken on record. Immediately thereafter the counter-claim was filed by the respondent on 27.6.2003. When the counter claim was filed, the learned advocate for the petitioner was present and accepted the copy of the counter claim and sought time to file the reply. Immediately thereafter the counter-claim was filed by the respondent on 27.6.2003. When the counter claim was filed, the learned advocate for the petitioner was present and accepted the copy of the counter claim and sought time to file the reply. The trial Court has granted four days time for filing the reply and no objection was raised on behalf of the petitioner. She has, therefore, submitted that when there is no objection to the counter claim, it is not now open for the petitioner to challenge the action of the learned Civil Judge of entertaining the counter suit. She has further submitted that considering the decree passed in Regular Civil Suit No.173 of 1998 on 18.3.1999 and the subsequent suit filed by the petitioner being Regular Civil Suit No.509 of 1999 on 4.10.1999, it becomes clear that the petitioner has suppressed the fact relating to earlier proceeding and there was no reference of earlier suit. The petitioner has withdrawn the suit only view a view to frustrate the counter claim filed by the respondent. She has, therefore, submitted that no interference is called for while exercising the writ jurisdiction of this Court under Article 227 of the Constitution of India. 3. Having heard the learned advocates appearing for the parties and having considered the facts stated and averments made in the petition as well as the affidavit-in-reply and having gone through the orders passed by the Courts below, the Court is of the view that the learned trial Judge has committed an error in entertaining the counter claim filed by the respondent on 27.6.2003. There is no dispute about the fact that the respondent has filed the Written Statement on 4.10.2001 which was taken on record on 7.2.2003. There is also no dispute about the fact that there is no reference with regard to counter-claim in the said Written Statement or no leave was sought for in the said Written Statement for filing counter-claim at a later stage. The provisions contained in Order-VIII Rule-6A clearly stipulates that the counter claim should be filed by the defendant before the defence was set up or the time to file Written Statement or to raise defence is granted by the Court. The provisions contained in Order-VIII Rule-6A clearly stipulates that the counter claim should be filed by the defendant before the defence was set up or the time to file Written Statement or to raise defence is granted by the Court. Since the counter-claim is filed by the respondent on 27.6.2006 i.e. on the date when the suit was allowed to be withdrawn, it is a belated one and it cannot be entertained by the trial Court. Since there is a jurisdictional error committed by the trial Court in entertaining the counter-claim, the said jurisdictional error is required to be corrected by this Court while exercising its writ jurisdiction under Articles 226 and 227 of the Constitution of India. Accordingly, the order of the trial Court passed on 27.6.2003 in entertaining the counter-claim is hereby quashed and set aside. Once the counter-claim is not permitted to be entertained the interim injunction granted by the trial Court on the basis of such counter-claim and the order of the learned Appellate Court in confirming the said interim relief also require to be quashed and set aside, as they are consequent to the counter-claim filed by the respondent. Once the counter-claim goes all other proceedings in relation thereto are also required to be quashed and set aside. 4. Accordingly this petition is allowed. Rule is made absolute without any order as to costs.