JUDGMENT Hon’ble S.U. Khan, J.—In this case arguments of learned counsel for the petitioner were heard and judgment was reserved on 25.11.2010. On the same date following order was passed on the substitution application. “Twice steps were taken but no one has appeared on behalf of proposed legal representatives of respondent No. 2. Sri Prabhker Singh, learned counsel, who was representing respondent No. 2, states that in spite of his several letters heirs of respondent No. 2 have not contacted him. Accordingly, substitution application is allowed” 2. Respondent No. 2, Sri Ram was the only contesting respondent in this writ petition. 3. Petitioner instituted original suit No. 542 of 1987 against original respondent No. 2 for the relief of permanent injunction seeking to restrain the defendant from demolishing particular construction of the petitioner and from cutting the trees standing over sahan (Court yard) of the plaintiff. The defendant pleaded that land in dispute was his rasta. Written statement copy of which is Annexure 2 to the writ petition was filed on 2.5.1987. In para 20 of the written statement a counter claim was made to the effect that construction made by the plaintiff petitioner over the land in dispute should be directed to be demolished and plaintiff should be restrained from making any construction thereupon as that was defendant’s rasta. The said claim was termed as counter claim in the said para and Court fees was paid thereupon. The plaintiff did not file any written statement to the said counter claim. 7th Additional Munsif Allahabad decided (dismissed) the suit on 17.1.1988 copy of the judgement is Annexure 3 to the writ petition. 4. The land in dispute lies in between the houses of plaintiff and defendant. It is situate towards north of plaintiff house. Defendant admitted that the plaintiff had acquired the land from the gaon sabha over which he had constructed his house. However, the defendant pleaded that the plaintiff had shifted the door of his house from west to north before the filing of the suit. The trial Court in its judgment mentioned that plaintiff had not made the counter claim on the defendant at all. Probably the Court meant that plaintiff had not filed written statement to the counter claim made by the defendant. The trial Court in its judgment mentioned that plaintiff had not made the counter claim on the defendant at all. Probably the Court meant that plaintiff had not filed written statement to the counter claim made by the defendant. Thereafter, it is mentioned by the trial Court that in absence of any replication being filed by the plaintiff against the counter claim, the contents of counter claim remains uncontroverted and unchallenged. 5. It is noted by the trial Court under issue No. 1 that the contention of the defendant was that the plaintiff had constructed his old house over the whole of the allotted portion (1 biswa 10 dhur) and had constructed his new house alongwith hut and new door just before the filing of the suit. The trial Court held that the original allotment order had not been filed and oral evidence could not be seen as no written statement by the plaintiff had been filed to the counter claim of the defendant. The operative portion is only of three words to the effect that “suit is dismissed.” 6. In the judgment of the trial Court last line of report of the commissioner is quoted according to which after the house of the defendant there was no rasta for going to anywhere. 7. Against the judgment and decree passed by the trial Court plaintiff filed appeal which is pending before 2nd Additional District judge, Allahabad, in the form of Civil appeal No. 73 of 1988. In the appeal petitioner-appellant filed application for permission to file written statement against the counter claim filed by the defendant before the trial Court. The application was rejected on 16.7.1991 by 2nd additional District judge, Allahabad. The said order has been challenged through this writ petition. 8. In the concluding portion of the judgment, before the operative portion, the appellate Court mentioned that the trial Court had not passed any decree in favour of the defendant on the basis of counter claim, hence, even if written statement to the counter claim filed by the plaintiff appellant was taken on record still no difference would be made. 9. In the concluding portion of the judgment, before the operative portion, the appellate Court mentioned that the trial Court had not passed any decree in favour of the defendant on the basis of counter claim, hence, even if written statement to the counter claim filed by the plaintiff appellant was taken on record still no difference would be made. 9. Under order VIII Rule 6-A C.P.C. as inserted by Act No. 104 of 1976 it is provided under sub rule (3) thereof as under: “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” Order VIII rule 6 E is quoted below: “If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.” Rule VI-G of order 8 is quoted below: “The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.” 10. Firstly, the appellate Court itself had held that as counter claim was not decreed hence non filing of written statement against counter-claim was meaning less. 11. Secondly, in my opinion, if nothing new is to be stated in reply to the counter claim apart from the facts already stated in the plaint, then non filing of the written statement/reply to the counter claim is not fatal. In this regard reference may be made to the following authorities: 1. (1993) 2 Ker LJ 902 as summarised at serial No. (4) under order 8 Rule 6-E CPC page 967 Vol 5, 6th Edition of A.I.R. Manual. 2. Dr. Rajneesh v. Savita and another, AIR 2003 Raj 280 . 12. Plaintiff asserted that land in dispute belonged to him defendant asserted that it was his rasta. The defendant by way of counter-claim prayed for removal of construction of the plaintiff over the land in dispute. In the plaint, plaintiff had claimed the land in dispute to belong to him. In the written statement against counter-claim only the same thing could be stated and nothing more. The defendant by way of counter-claim prayed for removal of construction of the plaintiff over the land in dispute. In the plaint, plaintiff had claimed the land in dispute to belong to him. In the written statement against counter-claim only the same thing could be stated and nothing more. In my opinion in the instant case non filing of written statement to the counter-claim could not be said to be a case where the allegations made in the counter claim could be treated to be proved. 13. Thirdly, the trial Court could treat the allegation made in the counter claim as proved due to non filing of written statement against that only if the counter claim was decreed by the trial Court. Unfortunately, the trial Court in its operative potion did not say a single word about the counter claim. 14. However, I agree with the lower appellate Court that there was no question of allowing the written statement to the counter claim to be filed before the appellate Court. 15. Accordingly, writ petition is disposed of with the direction that the lower appellate Court shall decide the appeal in accordance with the observation made in the body of this judgment. Before the lower appellate Court plaintiff-petitioner-appellant shall file substitution application seeking substitution of legal representative of respondent in the appeal i.e. Sri Ram. The lower appellate Court shall issue notice to the legal representatives of respondent in the appeal and decide the substitution application and appeal after service upon them. —————