Judgment : 1. The opposite party no.1 as plaintiff instituted a suit praying for declaration and injunction in the Court of the learned Civil Judge (Senior Division), 2nd Court at Barasat (Title Suit No.8 of 2002). The petitioner, inter alia, was defendant no.3 in the suit, while the opposite parties 2 and 3 herein were defendants 1 and 2 respectively. 2. The defendant no.3/petitioner raised a counter-claim in accordance with provisions contained in Order VIII Rule 6A of the Code of Civil Procedure (hereafter the Code). 3. The suit was posted for hearing before the learned Judge on August 25, 2010. The plaintiff/opposite party no.1 and the defendant no.3/petitioner filed petitions praying for time. The other defendants were present by filing haziras. 4. Learned advocates for the defendants 1 and 2/ opposite parties 2 and 3 submitted that the plaintiff/opposite party no.1 and defendant no.3/petitioner were indulging in filing time petition without supplying copy to them and that on earlier occasions adjournments had been granted. The learned Judge upon consideration of the earlier orders came to a conclusion that there was no justification to adjourn hearing of the suit. The suit was accordingly dismissed for default. 5. After dismissal of the suit, on September 21, 2010, the defendant no.3/petitioner filed a petition under Section 151 of the Code praying for necessary order to proceed with the counter-claim filed by him and to fix the next date for first hearing thereof. 6. The learned Judge upon hearing the parties, by Order No.66 dated November 26, 2010, rejected the petition holding as follows : “Thus it is made clear that on that day not only the plaintiff’s suit but the entire suit including the counter claim was dismissed for default. So, this court can not fix any date for P. hearing of counter claim. Therefore, the petition u/s 151 CPC of the defendant no.3 is rejected. The defendant may take proper steps for restoring the suit.” 7. This order is under challenge in this application under Article 227 of the Constitution. 8. I have heard Mr. Sen, learned advocate for the defendant no.3/petitioner, Mr. Ghosh, learned advocate for the opposite party no.3/defendant no.2 and Mr. Das, learned advocate for the opposite party no.2/defendant no.1. 9. Setting up of a counter-claim in a suit is permissible in terms of Order VIII Rule 6A of the Code. 8. I have heard Mr. Sen, learned advocate for the defendant no.3/petitioner, Mr. Ghosh, learned advocate for the opposite party no.3/defendant no.2 and Mr. Das, learned advocate for the opposite party no.2/defendant no.1. 9. Setting up of a counter-claim in a suit is permissible in terms of Order VIII Rule 6A of the Code. It may be set up in respect of a claim for which the defendant could have filed a separate suit. Sub-rule (2) of Rule 6A ordains that a counter-claim shall have the same effect as a cross-suit, thereby enabling “the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim”. In terms of sub-rule (4) of Rule 6A, the counter-claim ought to be treated as a plaint and governed by the rules applicable to plaints. A defendant setting up a counter-claim has to pay court-fee. It is, therefore, substantially a cross-action. Order VIII Rule 6D further ordains that “(I)f any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with”. 10. In view of the provisions in respect of a counter-claim, a defendant setting it up is entitled to an order of Court either way. Even if the plaintiff does not wish to proceed with the suit, the counter-claim ought to be concluded by allowing it or by dismissing it, either on merits or for non-prosecution. 11. I find support for the conclusion reached from the decision of a learned Judge of this Court in M/s. Daga Films vs. M/s. Lotus Produciton & ors., reported in AIR 1977 Calcutta 312. It was held therein as follows : “19 …………..under the New Code specific provision has been made for counter-claim. Under O. 8, R. 6-A sub- rs. (2) and (4) and O.8 R.6-D if the suit of the plaintiff is discontinued or dismissed the counter-claim may nevertheless be proceeded with as in the case of a counter-claim written statement is really in the nature of a plaint. So even if the plaintiff’s claim is not pressed or given up or withdrawn or breaks down for any reason whatsoever, the defendant has still the right to get a decree of a counter-claim as claimed in the written statement.” 12. Keeping these principles in mind, the impugned order has to be tested. 13. So even if the plaintiff’s claim is not pressed or given up or withdrawn or breaks down for any reason whatsoever, the defendant has still the right to get a decree of a counter-claim as claimed in the written statement.” 12. Keeping these principles in mind, the impugned order has to be tested. 13. The learned Judge in the process of passing the order dated August 25, 2010 appears to have proceeded oblivious of the provision in Order VIII Rule 6D of the Code. Bare perusal of the said order reveals that the suit instituted by the plaintiff/opposite party no.1 was dismissed for default and there was no reference made to the counterclaim of the defendant no.3/petitioner. If indeed the learned Judge while dismissing the suit for default intended that the counter-claim ought to meet the same fate, an order to this effect ought to have been recorded by him. Regrettably, it is found from the impugned order dated November 26, 2010 that the learned Judge while declining the defendant no.3/petitioner’s prayer to proceed with the counter-claim sought to cover up the inadvertent omission in passing an order in respect of the counter-claim by reading into the order dated August 25, 2010 words, which were not there. Since there is no indication in the order dated August 25, 2010, the learned Judge erred in observing that the suit including the counterclaim was dismissed for default. 14. The impugned order rejecting the petition under Section 151 of the Code filed by the defendant no.3/petitioner stands set aside. The learned Trial Court shall now proceed to fix a date and decide the counter-claim in accordance with law, with utmost expedition. 15. The application stands allowed, without costs. 16. Urgent photostat certified copy of this order, if applied for, be supplied to the applicant upon compliance with requisite formalities.