ORDER : 1. This petition, under Article 227 of the Constitution of India has been filed challenging the order dated 10/02/2022 passed by the 6th Additional Judge, to the Court of 1st Civil Judge, Class–I, Raipur (CG) (for short trial court) in Civil Suit No.18-A/2009. By the impugned order, the learned trial court, has allowed an application filed by respondent no.2/defendant no.2 under section 151 of Civil Procedure Code, 1908 (for short CPC) and permitted her to file the written statement and counter-claim. The parties are hereinafter referred to their status before the trial court. Facts of the case 2. The plaintiff has filed a suit before the learned trial Court seeking relief of eviction, possession and recovery of rent in respect of a shop situated in part of plot no.23/5 and 24/6 block no. 98 area about 2580 square feet at Bastal, Hospital Ward, Raipur (C.G.) (for short suit shop). The suit shop is properly described in red colour in the map annexed with the plaint against original defendant Late Rajesh Shrivas (herein after deceased defendant). Deceased defendant filed his written statement. No counter claim was filed by the deceased defendant. However, thereafter he was proceeded ex-parte and an ex-parte judgment and decree was passed dated 06.05.2016. Later on deceased defendant filed an application under Order 9 Rule 13 of CPC to set aside the ex-parte judgment and decree which was registered as M.J.C. No. 35/2016. During pendency of such said M.J.C., deceased defendant Rajesh Shrivas died and defendant no.1 to 4 were substituted in the M.J.C. in place of deceased defendant. The M.J.C was dismissed by the trial court. Against which a Miscellaneous Appeal was filed by the defendant no. 1 to 4, which was allowed by the appellate court and ex-parte judgment and decree was set aside. The case was remanded back for recording of evidence. 3. Thereafter, parties appeared before the learned trial court and plaintiff examined his witnesses and his evidence was concluded. The case was fixed for recording of evidence of defendants. Defendant no.1 examined herself and her evidence was also concluded. On 29/07/2021 the defendant no.1 filed an application interalia stating that defendant no.2 has attained majority and wishes to engage another Advocate. The learned trial court though permitted the defendant no.2 to engage another Advocate however denied her to file a separate written statement vide order dated 26.08.2021. Defendant no.1 examined herself and her evidence was also concluded. On 29/07/2021 the defendant no.1 filed an application interalia stating that defendant no.2 has attained majority and wishes to engage another Advocate. The learned trial court though permitted the defendant no.2 to engage another Advocate however denied her to file a separate written statement vide order dated 26.08.2021. The said order was put to challenge by the defendant no.2 in the Writ Petition under article 227 of Constitution of India which was registered as WP227 No.566 of 2021. This court vide its order dated 08.10.2021 permitted the defendant no.2 to file an application before learned trial court giving specific reason for filing separate written statement. This court also directed the learned trial court to pass appropriate order if such application is filed. 4. The defendant filed an application under section 151 of CPC seeking permission to file written statement/counter-claim giving reason that will dated 02.12.1986 executed by the great grand father of defendant no.2 is forged and void ab initio, suit shop is the self acquired property of her father deceased defendant. Ventilating the above basic reasons she prayed that she may be permitted to file a separate written statement/counter claim. The said application was resisted by the plaintiff by a filing a reply interalia stating that no such permission can be granted. The reasons upon which the prayer for filing the separate written statement is made is not available to defendant no.2. No such pleadings were never made by deceased defendant in his written statement. Therefore the application is liable to be rejected. The learned trial court vide its order dated 10.02.2022 impugn herein allowed the application and permitted the defendant no.2 file a separate written statement/counter-claim. On the same day the defendant no.2 filed written statement and counter-claim. Submissions on behalf of the plaintiff 5. Shri Shrivastava, learned counsel for the plaintiff vehemently submitted that the impugned order is patently erroneous and contrary to law. He went on to submit that the relief claimed by the defendant no.2 in her counter claim was neither prayed by the deceased defendant in his written statement nor any counter claim was filed. Therefore, the said relief as claimed by defendant no.2 was already abandoned by the deceased defendant, hence it cannot be permitted to be agitated by defendant no.2. Therefore, the said relief as claimed by defendant no.2 was already abandoned by the deceased defendant, hence it cannot be permitted to be agitated by defendant no.2. The defendant no.2 cannot be permitted to take a plea inconsistent with the plea taken by the deceased defendant in his written statement. The defendant no.2 has been substituted in the case as a legal representative of deceased defendant, hence she has stepped into the shoe of deceased defendant and bound by the pleadings taken by him. The provision of Order 8 Rule 6A of CPC has to be read in consonance with Order 22 Rule 4 (2) of CPC. During course of arguments though he submitted that the defendant no.2 can file the written statement which is not inconsistent with the plea taken in written statement by deceased defendant but as such counter-claim so filed cannot be permitted to be taken on record. He submits that the defendant No. 2 by way of counter-claim claiming her right to be declared as owner of the suit shop which is not permissible under the law because earlier suit with regard to validity of the will executed by the great grand father of the defendant No. 2 has already been decided in previous suit filed by the deceased defendant. May be, because of this reason in the original written statement, the counter-claim on behalf of deceased defendant was not made claiming himself to be the title holder of the property. Though he has challenge the impugned order in its entirety but, by virtue of order of this Court dated 08.10.2021 passed in WP227 No. 566 of 2021, on an application of defendant no.2, the learned trial court permitted to file the written statement and counter-claim. His submission is basically upon the filing of the counter-claim by which the independent claim of the defendant No. 2 is permitted to be taken on record. Order 8 Rule 6A of CPC clearly spells out that such permission cannot be granted. To buttress his submission he placed reliance on a judgment passed Hon’ble Supreme Court in case of Vidyawati Vs. Man Mohan and Others reported in (1995) 5 SCC 431 and also a judgment of this Court in case of Smt. Asha Pandey and others Vs. D.K. Dubey reported in 2010 SCC Online Chh 423 = 2011 (4) CGLJ 10 . Submissions on behalf of the defendants 6. Man Mohan and Others reported in (1995) 5 SCC 431 and also a judgment of this Court in case of Smt. Asha Pandey and others Vs. D.K. Dubey reported in 2010 SCC Online Chh 423 = 2011 (4) CGLJ 10 . Submissions on behalf of the defendants 6. Per contra, Ms. Singhvi, learned counsel for the defendants vociferously submitted that the learned trial court has not committed any illegality in allowing the application and thereby permitting the defendant no.2 to file a separate written statement and counter claim. Taking a defence in a suit is the right of every defendant. She submitted that at the time of filing of the suit by the deceased defendant, the present defendant No. 2 was minor and after attaining majority she had every right to take defence according to her choice and will and defence taken by her father in the original written statement cannot bind her. She further submitted that the permission was granted by the Hon’ble High Court in WP 566 of 2021 ventilating the reasons upon which the written statement was suppose to be filed, though reasons have been categorized in the application and the learned trial Court found it appropriate to allow the application permitting to defendant No. 2 to file the written statement. She further submitted that no inconsistent plea is taken in the written statement filed by defendant no.2 to that of written statement filed by deceased defendant. She went on to submit that counter claim is to be treated as a cross-suit in view of provision of Order 8 Rule 6A (2) of CPC. Meaning thereby there is no legal bar as such to file a separate suit claiming the relief as claimed in the counter claim. She further submitted that filing of written statement or counter claim as a case may be, does not mean that the case is proved it is only the pleadings which is brought on record before the learned trial court. The plaintiff would have every right to non suit the counter-claim by leading the evidence in this regard. So, therefore, no prejudice as such would be caused to be plaintiff if the written statement and the counter-claim is allowed to be taken on record. The plaintiff would have every right to non suit the counter-claim by leading the evidence in this regard. So, therefore, no prejudice as such would be caused to be plaintiff if the written statement and the counter-claim is allowed to be taken on record. She further submitted that the power of this Court under Article 227 of Constitution of India is limited to correct the jurisdictional error or any perversity committed by the learned Courts below or tribunals. From plain reading of the impugned order, it does not appear that the learned trial Court did not have any jurisdiction to pass such an order and reasons which have been assigned by the learned trial Court appears to be based upon proper appreciation of material and the ground which have been taken in the application. Even if some erroneous finding has been recorded, article 227 is not the jurisdiction the correct the same. She further submitted that in order to avoid multiplicity of suit the relief has been claimed in the counter claim. She submitted that apart from challenging the validity of will, other relief has also been claimed by the defendant no.2. Therefore, it cannot be said that the counter claim filed by the defendant no.2 is in any manner inconsistent with the plea taken by the deceased defendant. Continuing her submissions it has been argued that in the written statement filed by the deceased defendant had denied the execution of the will and in view of the above, the declaration has been sought by the defendant no.2. She further submitted that from bare reading of Order 8 Rule 6C of CPC it is apt that if plaintiff wants to dispose of the counter claim by way of a separate suit, he may file an application for exclusion of counter claim. She further argued that filing of written statement is based upon the principles of natural justice. Once the written statement is permitted to be filed there is no justifiable reason exits to deny filing of counter claim. To fortify her submission, she placed reliance on a decision of Hon’ble Bombay High Court in case of Nilkanth and others Vs. Amarkanth reported in 2016 (6) Mh.L.J. 46 = 2016 SCC OnLine Bom 7058 and a judgment of the Hon’ble Supreme Court in case of Sumtibai and others Vs. Paras Finance Co. and others reported in (2007) 10 SCC 82 . Amarkanth reported in 2016 (6) Mh.L.J. 46 = 2016 SCC OnLine Bom 7058 and a judgment of the Hon’ble Supreme Court in case of Sumtibai and others Vs. Paras Finance Co. and others reported in (2007) 10 SCC 82 . Analysis and conclusions 7. This Court raptly considered the arguments advanced by learned counsels for the parties and also examined the record with utmost circumspection. 8. Before delving in the merits of the submissions, it would be desirable to rely on the judgments cited by the learned counsels of the respective parties. 9. Hon’ble Supreme Court in case of Vidyawati (Supra) held that legal representative of the deceased defendant is entitled to all the defences which were available to deceased defendant. But if the legal representative intends to make any personal or individual defence dehors the defence available to the deceased defendant, he/she must get impleaded in his/her personal or independent capacity under Order Rule 1 of CPC or retain the right to file independent suit asserting his/her own right. 10.In case of Smt. Asha Pandey (Supra) while dealing with an appeal against a decree of specific performance of contract in which the legal representative of original defendant denied the execution of agreement of sale which was admitted by original defendant observed in paragraph 11 as under:- “11. As per the provisions contained in Order 22 Rule 4(2) of C.P.C., legal representative of the deceased defendant cannot take a plea which is inconsistent or contrary to the plea taken by the deceased defendant. Any such person may make any defence appropriate to his character as legal representative of the deceased and not more than that. Therefore, the matter requires consideration in the light of the written statement filed by the deceased defendant P.S. Pandey.” 11. Hon’ble Bombay High Court in case of Nilkanth (Supra) dealing with a case with similar facts of this case observed as under:- “6. The position aforesaid however not apply so far as the counter-claim is concerned. A counter-claim has the same effect as a cross-suit. If the legal representative can bring an independent action for seeking relief, the same can also be sought by filing a counter-claim.” 12. Hon’ble Supreme Court in case of Sumtibai (Supra) observed in paragraph 8 as under:- “8. Every party in a case has a right to file a written statement. This is in accordance with natural justice. If the legal representative can bring an independent action for seeking relief, the same can also be sought by filing a counter-claim.” 12. Hon’ble Supreme Court in case of Sumtibai (Supra) observed in paragraph 8 as under:- “8. Every party in a case has a right to file a written statement. This is in accordance with natural justice. The Civil Procedure Code is really the rules of natural justice which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing. The appellants in the present case have already been made parties in the suit, but it would be strange if they are not allowed to take a defence. In our opinion, Order 22 Rule 4(2) CPC cannot be construed in the manner suggested by learned counsel for the respondent.” 13. In light of the above authoritative pronouncement, I shall now proceed to deal with the submissions of the learned counsel for the parties. 14. True it is that as per the provisions contained in Order 22 Rule 4(2) of C.P.C., legal representative of the deceased defendant cannot take a plea which is inconsistent or contrary to the plea taken by the deceased defendant. The legal representative cannot take a defence dehors the defence taken by the deceased defendant in the written statement. If any if the legal representative intends to take a personal or individual defence then he/she must implead him/her in individual capacity under Order 1 Rule 10 of CPC. The plaintiff in case in hand claimed his title on the suit shop at the strength of a will dated 02/12/1986 executed by father of plaintiff Late Onkarnath Shrivas (great grand father of defendant no.2). The deceased defendant in his written statement had denied the execution of the will. He had denied the averments of the plaint filed by the plaintiff. From perusal of the written statement filed by the defendant no.2 it does not appear that any inconsistent plea has been taken. Even otherwise during the course of argument learned counsel for the plaintiff has submitted that identical defence is taken by defendant no.2 to that of deceased defendant hence there was no need to allow the written statement to be taken on record. Therefore, the submissions made by learned counsel for the plaintiff in this regard is liable to be rejected. 15. Therefore, the submissions made by learned counsel for the plaintiff in this regard is liable to be rejected. 15. Bare perusal of provisions contained in Order 8 Rule 6A (2) of CPC it is manifest that the counter claim has an effect of cross suit. Order 8 Rule 6C also gives right to plaintiff to file an application for exclusion of counter-claim. As such there is no legal bar for defendant no.2 file an independent suit seeking as claimed in counter-claim, then she cannot be denied to seek the same remedy by way of counter-claim. Hence, the learned trial court has not committed illegality or jurisdictional error by allowing the defendant no.2 to file the counter-claim. 16. One of the submission of the learned counsel for the plaintiff is that the defendant is trying to revive a dead issue which has already been settled in another suit. In this context it has to be seen that mere filing of counter-claim would not mean that the relief as claimed is granted. Same would be granted or refused after completion of trial of suit on the basis of evidence brought on record to substantiate the pleadings of counter-claim. Naturally, the plaintiff would have all the right to agitate the same including taking a plea of res-judicata if he so desires. Simply because the defendant no.2 has come on suit as a legal representative of deceased defendant, she cannot be non-suited. 17. As a fall out of the above discussion and in view of the law laid down in the case laws cited above, the writ petition filed by the petitioner/plaintiff deserves to be and hereby dismissed. However looking to the long pendency of suit learned trial Court is expected to expedite the same. 18. No order as to cost. Certified copy as per rules.