RAJASTHAN AT JODHPUR : : S.B. Civil Writ Petition No.4434/2010. (Pavneet Kaur v. Jasvinder Singh) DATE OF ORDER : March 04 & Anr.

HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. Manish Shishodia for the petitioner. Mr. S.S. Dhillon for the caveator-respondent. BY THE COURT : In this writ petition, the petitioner has prayed for quashing order dated 05.10.2010, Annex.-7 by which learned trial Court took the counter-claim filed by the defendants on record. Learned counsel for the petitioner submits that trial Court has committed a gross error while taking the counter-claim on record after 90 days. As per facts of the case, a suit was filed on

11.04.2009 and, admittedly, counter-claim has been filed after filing reply. Further, it is submitted that the counter- 2 claim has not been filed upon proper court-fee, therefore, the order impugned deserves to be quashed. Learned counsel for the petitioner invited my attention towards the fact that that learned trial Court has not properly considered the judgment cited before the Court for the purpose of refusing to take the counter-claim on record, therefore, the impugned order deserves to be quashed. Per contra, learned counsel appearing on behalf of the respondent submits that as per judgment of the Hon'ble Supreme Court, reported in AIR 2008 SC 2003, the counter- claim cannot be filed for the cause of action which arose after filing written-statement; but, here, in this case the facts are altogether different because defendant No.2 filed counter-claim for the cause of action which arose prior to filing the written-statement. Therefore, the contention of the petitioner deserves to be rejected. With regard to not having filed proper court-fee, it is submitted that at this stage it is not necessary to furnish court-fee and objection can be raised by way of filing reply to the counter-claim and, after raising objection in the reply, the order for determination of court-fee can be made. It is also brought to the notice of this Court that as per 3 provisions of the Civil Procedure Code, there is no limitation prescribed for filing counter-claim within stipulated time, therefore, learned trial Court has rightly passed order upon application filed under Order 8 Rule 6A, C.P.C. for taking the counter-claim on record and rightly took the counter-claim on record. I have perused the impugned order. In this case, it is observed by the trial Court that counter-claim has been filed on the basis of cause of action which arose prior to filing the written-statement and as per judgment of the Hon'ble Supreme Court, reported in AIR 2008 SC 2003, the counter-claim which is filed on the basis of cause of action arising after filing written-statement is not permissible; but, here, in this case the counter-claim has been filed for the cause of action which arose prior to filing the written-statement. In this view of the matter, the judgments cited by learned counsel for the petitioner,