ORDER 1. These petitions filed under Article 227 of the Constitution are directed against the same impugned Order passed in Civil Suit No.15A / 92 by the Additional District Judge, Mungawali, dated 28.11.2000. On joint request, matters were analogously heard and decided by this common Order. WP No.1343 /2004 2. Shorn of unnecessary details, the relevant facts are that the petitioner/plaintiff filed a civil suit against Inayat Hussain. Inayat Hussain died during the pendency of the suit and his legal heirs were brought on record along with respondents No.2 to 13 and their legal representatives. The suit was filed for declaration and permanent injunction with further prayer of restoration of possession. The plaintiff stated that suit house is situated at ward No.2, Jawahar Marg, Mungawali, Distt. Guna. 3. It is the case of the plaintiff that plaintiff’s father Kurwan Hussain had four sons, namely, Ali Hussain (plaintiff), Inayat Hussain, Noor Hussain and Abbas Hussain. Abbas Hussain died in the year 1966 and his legal heirs are defendants No.2 to 9. Another brother of the plaintiff, Noor Ali died in the year 1984 and his legal heirs were impleaded. According to the plaintiff, there was a partition between the brothers during the life time of the father and the suit house fell to the share of plaintiff. After two years of the partition, father of the plaintiff Kurwan Hussain died and plaintiff became the sole owner of the property. According to the plaintiff, out of two shops, one shop had fallen to the share of plaintiff and the other to the share of defendant No.1. This portion of the property is situated at Naya Bazar, Mungawali. The plaintiff further stated that Inayat Hussain was carrying on his business at Ashok Nagar as well, but he had shifted to Mungawali before 20 years and wanted to carry on his business at Mungawali. In this suit, defendant No.1 filed his written statement, thereafter, the Court below has framed the issues. The plaintiff lead his evidence. Thereafter, the defendant also examined himself. Certain other witnesses of the defendant entered the witness box and deposed their statements. Before completion of defense evidence, the defendant moved an application under Order 6 rule 17 CPC on 28.9.2000. In this suit, defendant No.1 filed his written statement, thereafter, the Court below has framed the issues. The plaintiff lead his evidence. Thereafter, the defendant also examined himself. Certain other witnesses of the defendant entered the witness box and deposed their statements. Before completion of defense evidence, the defendant moved an application under Order 6 rule 17 CPC on 28.9.2000. In addition, he filed counter claim on the ground that he had acquired right by virtue of adverse possession and the legal heirs of the defendant No.1 acquired the right by virtue of adverse possession being in possession for more than 12 years as the owner of the suit property. The application for amendment and counter claim were opposed by the present petitioner. The trial Court after hearing parties on this aspect allowed the amendment application and partly allowed the counter claim. This Order of Court below dated 28.11.2000 is called in question in both the petitions. The Court below has disallowed the part of the counter-claim in which the defendants intended to include a different property than the suit property. In other words, the suit was filed pertaining to a property situated at Mungawali. A part of counter claim which has been rejected contains a property situated at Ashok Nagar. The Court below opined that by counter claim the scope of suit cannot be extended. 4. Shri N.K. Jain, Senior counsel, criticized the Order whereby the Court below has allowed the amendment application at the stage of almost closure of defense evidence. Learned counsel heavily relied on proviso to Order 6 rule 17 CPC and the judgment of Supreme Court in the case of (Vidyabai and others v. Padmalatha and another) reported in (2009) 2 SCC 409 . He also relied on 2009 (1) MPWN 23 (Indus Colonisers (P) Ltd. v. Shadab Grih Nirman Sahkari Samiti, Bhopal and another). It is contended that after insertion of proviso, unless due diligence is established, amendment cannot be allowed. Criticizing the Order, whereby counter claim is partly allowed, learned senior counsel relied on AIR 2001 Karnataka 10 (Hanumanthagouda v. Bandu @ Bandeppa Venkatesh Kulkarni and others). By placing reliance on para 13 of this judgment, it is contended that issues are framed and recording of evidence has commenced and, therefore, it was not open for the Court below to even partly accept the counter claim. By placing reliance on para 13 of this judgment, it is contended that issues are framed and recording of evidence has commenced and, therefore, it was not open for the Court below to even partly accept the counter claim. He contends that at the stage counter claim was filed, it was not maintainable. WP No. 5876 /2007 5. WP No.5876 /2007 is also directed against the same Order. The petitioners/defendants is aggrieved by the portion of the Order whereby his counter claim is disallowed. Shri D.D. Bansal, learned counsel for the petitioner, submits that under Order 8 rule 6 (A) of CPC, the counter claim can be entertained till closure of the evidence of the parties. In support of this contention, he also relied on AIR 2001 Karnataka 10 (Hanumanthagouda v. Bandu @ Bandeppa Venkatesh Kulkarni and others). He placed heavy reliance on the finding wherein, the Karnataka High Court opined that the Court must lean in favour of full and complete justice and, therefore, the principle decided by the Division Bench can be extended to a case where the evidence is not completely closed by the parties and before the matter is reserved for judgment. He also relied on 2006 (6) MhLJ 728 (Sheshrao S/o Bhaurao Sable v. Ganesh S/o Mahadeorao Sable) in this case Bombay High Court has relied on the Judgment of Karnataka High Court in Hanumanthagouda (supra). He also relied on Bombay High Court’s judgment passed in Civil Revision No.286/1988 (Datta Bandu Sadale and others v. Sridhar Payagonda Patil and Others). Lastly, he relied on (1997) 8 SCC 174 (Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra Day (Dead) by LRs). 6. I have heard learned counsel for the parties and perused the record. 7. The impugned Order makes it clear that application filed by the defendants for amendment is allowed. In addition, counter claim filed by the defendant is partly allowed. In view of rival contention advanced, following questions emerge for decision :- (i) Whether the Court below has erred in allowing the amendment application? (ii) Whether at the stage of almost closure of defense evidence, counter claim under Order 8 rule 6 (A) CPC was entertainable? (iii) Whether the Court below has erred in partly disallowing the counter claim? Point No. (i) 8. The amendment application is admittedly filed at belated stage. (ii) Whether at the stage of almost closure of defense evidence, counter claim under Order 8 rule 6 (A) CPC was entertainable? (iii) Whether the Court below has erred in partly disallowing the counter claim? Point No. (i) 8. The amendment application is admittedly filed at belated stage. Contention of Shri Jain, Senior counsel, is based on proviso to Order 6 rule 17 CPC. This proviso was inserted in the year 2002. In the considered opinion of this Court, the judgment of Vidyabai (Supra) and judgment of this Court reported in 2009 (1) MPWN 23 (Indus Colonisers (P) Ltd. v. Shadab Grih Nirman Sahkari Samiti Maryadit, Bhopal and another) will not apply in the facts and circumstances of the present case. Admittedly, the suit in question was instituted in November, 1988. The apex Court in (2009) 12 SCC 689 (Sumesh Singh v. Phoolan Devi and Ors.) opined that in a case where suit is filed before insertion of proviso (by Act 22 of 2002 w.e.f. 1.7.2002) proviso shall not apply. Vidyabai (supra) is based on the proviso, since it was held in Sumesh Singh (supra) that proviso itself will not apply in the suits which are filed prior in time, the judgment of Supreme Court in Vidyabai, based on said proviso, is of no assistance to the petitioner in WP No.1343 / 2004. Before amendment and insertion of proviso to Order 6 rule 17 CPC, the amendment applications were required to be considered leniently. Party seeking amendment was not required to establish due diligence. The Court below, in my opinion, has rightly allowed the amendment application by imposing costs because it was belatedly filed. Thus, point (i) is decided in favour of the defendants. Points No. (ii) and (iii) :- 9. The decision of point No. (iii) will depend on the decision of point No.(ii). If point No.(ii) is decided in favour of the petitioner/plaintiff, there would be no need to decide point No.(iii). Thus, point (i) is decided in favour of the defendants. Points No. (ii) and (iii) :- 9. The decision of point No. (iii) will depend on the decision of point No.(ii). If point No.(ii) is decided in favour of the petitioner/plaintiff, there would be no need to decide point No.(iii). Before dealing with the rival contentions on this point, I deem it proper to reproduce Order 8 rule 6(A) CPC, which reads as under :- “Order 8 rule 6 (A) 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 counterclaim 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 filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defense has expired, whether such counter-claim is in the nature of a claim for damages or not: (2) .......... (3) ........... (4) ........... (Emphasis supplied) 10. Contention of Shri D.D. Bansal is founded upon the judgment of Karnataka High Court in case of Hanumanthagouda (supra). Although he relied on (1997) (8) SCC 174 (Smt. Shanti Rani Das Dwanjee v. Dinesh Chandra Day (Dead) By LRs), in the considered opinion of this Court, the said judgment has no application in the facts and circumstances of the present case. Similarly, reliance on 1987 JLJ 593 = 1987 (3) SCC 265 (Mahendra Kumar and another v. State of M.P. and ors.) is also of no help because in the said case the counter claim was held to be not entertainable by the High Court, when it was filed after filing written statement. In Mahendra Kumar (supra) the fact situation was different, it was not a case where counter claim is filed at the fag end of the trial and at the stage of almost closure of evidence of the defendant. Similarly, judgment reported in 2008 (13) SCC 179 (Bollepanda P. Ponacha and another v. K.M. Madapa) has no application in the facts and circumstances of the present case. Para 11 of this judgment shows that it is based on different facts and circumstances. 11. Similarly, judgment reported in 2008 (13) SCC 179 (Bollepanda P. Ponacha and another v. K.M. Madapa) has no application in the facts and circumstances of the present case. Para 11 of this judgment shows that it is based on different facts and circumstances. 11. A simple reading of Order 8 rule 6 (A)(1) CPC makes it clear that counter-claim against the claim of the petitioner can be filed before the defendant has delivered his defence or before the time limited for delivering defence has expired. Karnataka High Court in AIR 1991 Karnataka 283 (Smt. Parvathamma v. K.R. Lokhnath and others) opined that counter claim cannot be permitted to be filed once recording of the evidence commences. In (AIR 2003 Madras 416) (Southern Ancillaries Pvt. Ltd. v. Southern Alloy Foundaries Pvt.Ltd.) A Division Bench of Madras High Court opined that the defendant can make a counter-claim even after filing the written statement, but that should be filed before the commencement of recording of evidence. 12. Thus, there appears to be some difference of opinion in the view taken by different High Courts. The judgments cited by Shri D.D. Bansal are in his favour, whereas aforesaid judgments of Karnataka and Madras High Courts are somewhat different. However, in view of subsequent judgments of Supreme Court, curtains are finally drawn on this point. The apex Court considered this issue in (2003) 7 SCC 350 (Ramesh Chand Ardawatiya v. Anil Panjwani). In para 28 the apex Court opined that “Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced.” The aforesaid finding was given by the apex Court on the consideration that if the consequence of permitting a counterclaim either by way of amendment or by way of subsequent pleading would be prolonging the trial, complicating the otherwise smooth flow of the proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in not exercising its discretion in favour of permitting a belated counter-claim. The framers of the law never intended pleading by way of counter claim to be utilized as an instrument for forcing the reopening of the trial by pushing back the progress of the proceedings. 13. The apex Court in (2006) 12 SCC 734 (Rohit Singh and others v. State of Bihar (Now State of Jharkhand) and others) has held that “a counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so-called counterclaim of defendants 3 to 17 by the trial Court, after framing of issues for trial, was clearly illegal and without jurisdiction. On that short ground the so-called counterclaim, filed by the defendants 3 to 17 has to be held to be not maintainable”. 14. In view of plain reading of Order 8 rule 6(A) CPC and the judgments of Supreme Court in Ramesh Chand Ardawatiya and Rohit Singh (supra), it is clear that filing of counterclaim at the stage of conclusion of defence evidence is not permissible. This point needs to be decided in favour of the plaintiff. As analyzed above, the Court below has erred in even partially allowing the counterclaim at the stage of almost conclusion of defence evidence. To this extent, the Order needs to be interfered with. Since, counterclaim was held to be not maintainable/entertainable at said stage, point (iii) aforesaid need not to be decided. 15. Resultantly, the impugned Order dated 28.11.2000 to the extent amendment application was allowed, is affirmed. The impugned Order to the extent counterclaim was partially taken on record, is set aside. 16. Accordingly, WP No.1343/2004 is partially allowed in terms of aforesaid and WP No.5876/2007 is dismissed. No costs. ...............