1. The first contention raised in this summons is that the counterclaim has not abated because (a) it is not necessary to insert a separate title as no other party than the parties to the original suit was impleaded in the counter-claim ; and (b) there being no other defendant to the counter-claim, the provisions of Order XXII, Rule 4, do not in terms apply. I do not agree with these contentions. Rule 130 of the High Court Rules, which permits the filing of a counter-claim, states that counter-claim shall have the same effect as a cross-suit. There are provisions the rules for service of the counter-claim, for making persons other than the original parties defendants to the counterclaim, filing of a reply to the counter-claim by the plaintiff or by the additional defendants, and a provision that in default of such a reply the defendant to the suit will be entitled to have the suit put on board for an ex pate decree on the counter-claim. Whether a separate title is made or not is not important. It is important to note, however, that it is permissible to frame a counter-claim against persons other than the plaintiff. It is common knowledge that applications for affidavits of documents, motions, and such interlocutory proceedings are taken in respect of the counter-claim alone, which are not directly related to the suit. Having regard to this it appears to me clear that a counter-claim stands in the same category as a cross-suit for the purposes of the Civil Procedure Code. The contention of the applicants that the counter-claim has not abated by reason of the omission to bring the heirs of the deceased defendant to the counter-claim on record in the counter-claim must fail.
2. It is next urged that the plaintiffs had amended the plaint by bringing the heirs on record and they took an order for amendment of the plaint and also the third party proceedings which were taken by the plaintiffs as a result of the counter-claim. It is urged that it was therefore the duty of the plaintiffs to amend the title of the written statement itself. In my opinion that contention is wrong. The plaintiffs can amend their own pleadings, and if the defendants wanted to amend the title of the counter-claim it was their duty to obtain the order for the purpose.
3. It is next urged that as the plaintiffs had obtained the order to amend the plaint and the third party notice which arose out of the counter-claim, defendants thought that the written statement would also be accordingly amended. In the affidavits the blame is sought to be put on the plaintiffs for not doing so. Counsel on behalf of the applicants has urged that in light of the rules framed by the Court and the interpretation put on them by the legal advisers of the applicants, the applicants did not think that they were bound to come to Court and they have taken out this summons as a matter of precaution. If their contention as to the construction of the rules is incorrect, the applicants should not suffer for the advice tendered to them by the legal advisers and their claim should not be prejudiced. I think this argument cannot be disregarded. There is thus a sufficient cause under the circumstances of this case and the abatement is therefore set aside. The summons is made absolute. The applicants to pay the costs of the summons and bear the costs of the amendment of the title of the written statement and the consequential amendments. Leave granted to the plaintiffs to amend the title of their reply to the counter-claim. The time to amend the third party proceedings extended up to July 10, 1939.
4. Counsel certified.