JUDGMENT : The order permitting the defendants in a suit to set up a counter-claim after filing of the written statement is under challenge. The plaintiff is the petitioner. The contesting defendants are the respondents. 2. The plaintiff instituted the original suit for a declaration that the recitals in a document regarding the right of way through the property described therein is not valid and binding on him and for other consequential reliefs. 3. The contesting defendants resisted the suit by filing a written statement on 21.11.2018. The relevant pleadings in the written statement are contained paragraphs 18 and 19, which are extracted below:- “18. The defendants and their predecessors in interest have been using the said road starting from the TB road and passing through the 'A' schedule property to their property continuously, peacefully without interruption, as of right and as an easement. The road is apparent and continuous and it is absolutely necessary for the enjoyment of the defendant's property. The road was kept undisturbed while the aforesaid partition was taken place and subsequently for the reason that the same is required for the enjoyment of the respondents'property and the house situated therein. 19. The 1st defendant and her predecessor in interest namely Moidu Haji have been using the said road in the plaint schedule property to go to their property, peacefully, continuously and uninterruptedly and as of right and as an easement, eversince the execution of the said gift deed No.4165/1984 of S.R.O., Hosdurg, and to the knowledge of the plaintiff and hence the 1 st defendant has perfected an easement right of prescription over the said road. Apart from this, the said road was in existence at the time of execution of the said gift deed No.4165/1984 of S.R.O., Hosdurg. The said road is apparent and continuous and is necessary for the enjoyment of the property retained by Moideen Haji after the execution of the said gift deed. The said Moideen Haji was using the said road to proceed to his residential garden prior to and after the execution of the said gift deed. Thus, Moideen Haji was having right by quasi easements over the said road. The said quasi easement right of Moideen Haji was also transferred to the 1st defendant as per the registered gift deed No.284/1989 of S.R.O., Hosdurg. Thus, Moideen Haji was having right by quasi easements over the said road. The said quasi easement right of Moideen Haji was also transferred to the 1st defendant as per the registered gift deed No.284/1989 of S.R.O., Hosdurg. The 1 st defendant continued to use the said road subsequent to the said gift deed and by 2004, she has perfected an easement right of prescription also over the said road. Thus, the 1 st defendant is having easement right of prescription and quasi easement right over the said road. The 1 st defendant has sold the said property to the defendants 3 to 7 as per the registered sale deed No.922/2018 of S.R.O., Hosdurg dated 24/03/2018 and thus the said property together with the said right over the said road, now belongs to the defendants 3 to 7.” 4. On 20.08.2019, the contesting defendants filed I.A.No.1746 of 2019 seeking amendments in the written statement to incorporate the following paragraphs:- “24. That after the filing of the suit, the plaintiff with her men and agents have been continuously trying to prevent these defendants and their tenants and workers from using the 'C' schedule road herein. Such attempts were made by them on 15/08/2018, 19/08/2018, 26/08/2018 etc. They used to prevent these defendants from passing through the 'C' schedule road. On many such occasions, they have prevented motor vehicles carrying construction materials to the 'B' schedule. property. Lastly on the night of 29/06/2019, the plaintiff with the help of her men, have fully blocked the 'C" schedule road, at the southern boundary of the plaint 'A' schedule property by constructing iron gate and grills and by placing huge grinding stones and laterite stones. These defendants have filed I.A.No. 1270/2019 against the plaintiff seeking an order of mandatory injunction to direct her to remove all these obstructions. These defendants apprehend that the plaintiff and her men will continue to obstruct these defendants from using the 'C' schedule road or from passing through the 'A' schedule property to the 'B' schedule property herein, through the 'C' schedule road. These defendants will be put to irreparable loss and hardship which cannot be compensated in terms of money, if the plaintiff succeeds in her illegal attempts. The threatened action of the plaintiff can be stopped only by the interference of this Honourable Court. These defendants will be put to irreparable loss and hardship which cannot be compensated in terms of money, if the plaintiff succeeds in her illegal attempts. The threatened action of the plaintiff can be stopped only by the interference of this Honourable Court. These defendants are therefore entitled to get a decree for permanent prohibitory injunction against the plaintiff, restraining her from blocking the 'C' schedule road. Hence this counter claim. 25. The cause of action for the counter claim arose on and since the last several days after the filing of the suit i.e. on 15/08/2018, 19/08/2018, 26/08/2018 etc. (on which dates the plaintiff and her men attempted to prevent these defendants and their men from using the 'C' schedule road) and lastly on 29/06/2019 (the date on which the plaintiff and her men have blocked the 'C' schedule road leading to the 'B' schedule property) and subsequently in Hosdurg Village of Hosdurg Taluk (where 'A' and 'B' schedule properties and 'C' schedule road are situated) within the jurisdiction of this court. 26. These defendants estimate the value of the reliefs claimed in this counter claim at Rs.1,000/- for the purpose of Court fee and jurisdiction and pays a court fee of Rs.40/- under section 31 of the Kerala Court Fee and Suit Valuation Act and also pays a sum of Rs.100/- being the Legal Benefit Fund payable under section 76 of Kerala Fee and Suit Valuation Act.” 5. By way of the proposed amendment, the defendants reiterated their claims in the earlier written statement filed on 21.11.2018 and further pleaded that the attempt to prevent the user of the way by the plaintiff continued till 29.06.2019. The trial Court allowed the interlocutory application and permitted the defendants to incorporate the proposed amendments which include the counter-claim. 6. The challenge of the plaintiff is that the application seeking inclusion of counter-claim is belated and the proposed amendment and counter claim are based on a cause of action that arose after the filing of the written statement. 7. The relevant statutory provision, Order VIII Rule 6A, CPC reads thus:- “6A. 6. The challenge of the plaintiff is that the application seeking inclusion of counter-claim is belated and the proposed amendment and counter claim are based on a cause of action that arose after the filing of the written statement. 7. The relevant statutory provision, Order VIII Rule 6A, CPC reads thus:- “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.” 8. The question whether a defendant is entitled to raise a counter claim subsequent to the filing of the written statement is no more res integra in view of the pronouncement by the Apex Court in Mahendra Kumar v. State of M.P. [ AIR 1987 SC 1395 ] and Shanti Rani Das Dewanji v. Dinesh Chandra Day ( AIR 1997 SC 3985 ). The court has a discretion to permit a written statement being filed belatedly. Therefore court has a discretion also to permit a written statement containing a plea in the nature of set off or counter claim belatedly. The court has a discretion to permit a written statement being filed belatedly. Therefore court has a discretion also to permit a written statement containing a plea in the nature of set off or counter claim belatedly. But such discretion shall be exercised in a reasonable manner keeping in view of all the facts and circumstances of the case including the conduct of the defendant and the fact whether a belated leave of the court will cause prejudice to the plaintiff or take away a vested right which has accrued to the plaintiff by lapse of time. [Vide: Kerala Nadvathul Mujahideen v. Hussain Madavoor and Another [ 2007 (1) KLT 92 ]. 9. In Ramesh Chand Ardawatiya v. Anil Panjwani [ 2003 (7) SCC 350 : 2003 KHC 1536], on the modes of pleading or setting up a counter claim in a civil suit, the Supreme Court observed thus:- "28…...Looking to the scheme of O.8 as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter claim in a civil suit. Firstly, the written statement filed under R.1 may itself contain a counter claim which in the light of R.1 read with R.6 A would be a counter claim against the claim of the plaintiff preferred in exercise of legal right conferred by R.6A. Secondly, a counter claim may be preferred by way of amendment incorporated subject to the leave of the court, in a written statement already filed. Thirdly, a counter claim may be filed by way of a subsequent pleading under R.9. In the latter two cases the counter claim though referable to R.6A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under O.6, R.17 of the CPC. If sought to be introduced by way of amendment, or subject to exercise of discretion conferred on the court under O.8, R.9 of the C.P.C. if sought to be placed on record by way of subsequent pleading….." 10. Following Ramesh Chand Ardawatiya, this Court in Kerala Nadvathul Mujahideen observed thus:- “10. The settled legal position can thus be summarised as follows: A defendant is entitled to raise the counter claim in the original written statement filed under R.1 of O.8 as of right. Following Ramesh Chand Ardawatiya, this Court in Kerala Nadvathul Mujahideen observed thus:- “10. The settled legal position can thus be summarised as follows: A defendant is entitled to raise the counter claim in the original written statement filed under R.1 of O.8 as of right. But that does not mean that a defendant is entitled to raise a counter claim in respect of any cause of action accrued to him. He can only raise a counter claim in respect of a cause of action accruing to him 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''. So 'also he can be allowed to raise the counter claim subsequent to the filing of the written statement either by getting his written statement amended as provided under O.6, R.17 or by filing a subsequent statement as provided under O.8, R.9. If the consequence of permitting the counter by either of the last two modes would be protracting the trial, complicating the otherwise smooth flow of proceedings or causing delay in the progress of the suit by forcing repetition of the steps already taken by the court, the court would be fully justified in exercising its discretion not to entertain the counter claim sought to be raised. The main purpose for incorporating the provision of entertaining a counter claim is to avoid multiplicity of judicial proceedings so that the valuable time of the court could be saved and inconvenience that may be caused to the parties by contesting multiplicity of proceedings could be avoided. If the result of exercising the discretion in favour of the defendant would result in reopening of the trial or repetition of the steps already taken by recalling the witnesses, the discretion cannot be exercised in favour of the defendant. Ext. P6 order is to be appreciated in the background of this settled legal principles.” 11. In Mahendra Kumar v. State of M.P. , [ 1987 (3) SCC 265 : AIR 1987 SC 1395 ], the Supreme Court observed thus:- “15. The next point that remains to be considered is whether Rule 6-A(1) of Order 8 of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. In Mahendra Kumar v. State of M.P. , [ 1987 (3) SCC 265 : AIR 1987 SC 1395 ], the Supreme Court observed thus:- “15. The next point that remains to be considered is whether Rule 6-A(1) of Order 8 of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6-A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6-A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had 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. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6-A(1) in holding that as the appellants had filed the counter- claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A(1) of the Code of Civil Procedure. As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter-claim, which is treated as a suit under Section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the right to sue. The learned District Judge and the High Court were wrong in dismissing the counter- claim.” 12. The time limit for filing counter claim was considered by a three Judge Bench of the Supreme Court in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Others [ (2020) 2 SCC 394 : 2019 (5) KHC 735 ]. After referring to all the precedents in the subject, the Supreme Court concluded thus:- “16. The time limit for filing counter claim was considered by a three Judge Bench of the Supreme Court in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Others [ (2020) 2 SCC 394 : 2019 (5) KHC 735 ]. After referring to all the precedents in the subject, the Supreme Court concluded thus:- “16. The time limitation for filing of the counterclaim, is not explicitly provided by the Legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counter- claim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action Under Order VIII Rule 6A. Having said so, this does not mean that counter-claim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the time-barred suits cannot be entertained under the guise of the counter-claim just because of the fact that the cause of action arose as per the parameters of Order VIII Rule 6A. 17. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counter-claim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hypertechnical approach that the provision stipulates that the counter-claim has to be filed along with the written statement and beyond that, the Court has no power. At the same time, there cannot be a rigid and hypertechnical approach that the provision stipulates that the counter-claim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to sub-serve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the Courts. The Trial Court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counter-claim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC. 18. In this regard having clarified the law, we may note that the Mahendra Kumar Case (supra) needs to be understood and restricted to the facts of that case. We may note that even if a counter-claim is filed within the limitation period, the Trial Court has to exercise its discretion to balance between the right to speedy trial and right to file counter-claim, so that the substantive justice is not defeated. The discretion vested with the Trial Court to ascertain the maintainability of the counter-claim is limited by various considerations based on facts and circumstances of each case. We may point out that there cannot be a straitjacket formula, rather there are numerous factors which needs to be taken into consideration before admitting counter-claim. 19. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counter-claim. This Court needs to recognize the practical difficulties faced by the litigants across the country. 19. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counter-claim. This Court needs to recognize the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognized as well (refer to Salem Advocate Bar Association Case (supra)). 20. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter- claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The Court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The Court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: i. Period of delay. ii. Prescribed limitation period for the cause of action pleaded. iii. Reason for the delay. iv. Defendant's assertion of his right. v. Similarity of cause of action between the main suit and the counter-claim. vi. Cost of fresh litigation. vii. Injustice and abuse of process. viii. Prejudice to the opposite party. ix. And facts and circumstances of each case. x. In any case, not after framing of the issues.” 13. In the present case, the defendants specifically pleaded in the counter-claim that the plaintiffs attempted to prevent the user of the way on 15.08.2018, 19.08.2018, 26.08.2018 and that the latest attempt was on 29.06.2019. The foundation of the counter claim is on the cause of action that arose on 15.08.2018 and the same continued thereafter. Therefore, it cannot be said that the cause of action in the counter-claim arose after filing of the written statement. The impugned order, therefore, requires no interference under Article 227 of the Constitution of India. 14. The foundation of the counter claim is on the cause of action that arose on 15.08.2018 and the same continued thereafter. Therefore, it cannot be said that the cause of action in the counter-claim arose after filing of the written statement. The impugned order, therefore, requires no interference under Article 227 of the Constitution of India. 14. The learned counsel for the petitioner/plaintiff prayed for reserving the right of the plaintiff to contend that the claim raised by the defendants through the counter claim may be excluded as provided in Order VIII Rule 6C of the CPC. The trial Court, in the impugned order, has considered this aspect and granted the plaintiff the liberty to make a claim under Order VIII Rule 6C of the CPC. The learned Senior Counsel submitted that the Court has to necessarily consider such a request for exclusion under Order VIII Rule 6C of the CPC before the issues are settled. In the present case, this Court has obtained a report from the Court below wherein it is reported that the issues have not been raised. It is made clear that the plaintiff is at liberty to place a written statement in answer to the counter claim. 15. As the suit is of the year 2018, the trial Court shall expedite the trial and dispose of the matter, as expeditiously as possible, at any rate, within a period of six months from the date of production of a certified copy of this judgment. The trial Court is at liberty to seek further extension of time, if found necessary. The Original Petition is disposed of accordingly.