Biraja Sankar Mishra vs Mrs. Uma Mitra and Others

A.S. Naidu, J.—A counter-claim filed by Defendant No. 2 under Order 8, Rule 6A(1) of the CPC having been rejected by order dated 12-4-2004 by the Civil Judge (SD), Bhubaneswar in O.S. No. 16 of 1987, invoking jurisdiction under Articles 226 and 227 of the Constitution of India the said Defendant has approached this Court.

The aforesaid O.S.No.16 of 1987 was filed by the present Opposite parties 1 to 4 on 17-1-1987 inter alia praying:

(a) For possession of their respective purchased areas as shown in the schedule be confirmed and if during the pendency of the suit the Plaintiffs are found to be dispossessed their possession be recovered through Court.

(b) For restraining the Defendant Nos. 1 and 2 permanently from interfering with the possession of the Plaintiffs.

(c) For costs and other ancillary reliefs.

After receiving notice of the suit, the Defendants filed their written statement on 21-6-1987 (wrongly mentioned as "1-7-1987" in the impugned order). The suit thereafter, it is alleged by the Petitioner, dragged on for the laches of the Plaintiffs who filed petitions under Order 6, Rule 17 CPC to amend the plaint on two occasions. While matter stood thus, on 26-2-2004 the present Petitioner (Defendant No. 2) filed a counterclaim in the suit under Order 8, Rule 6A of the CPC for recovery of his possession of the suit properties. In the said counter-claim it was mentioned that the cause of action for raising such counter-claim arose on 10-6-1987, i.e. prior to filing of the written statement on 20-7-1987. The said counterclaim was resisted by the Plaintiffs mainly on the ground that the cause of action as had been admitted by Defendant No. 2 himself in the counter-claim having arisen on 10-6-1987, and the same having been filed on 26-2-2004 was grossly barred by limitation. It was further averred by the Plaintiffs that in consonance with Article 113 of the Limitation Act, 1963, a counter-claim was to be treated as a plaint and ought to have been filed within three years from the date when the cause of action arose.

The Learned Trial Court relying on a decision of the Calcutta High Court in the case of M/s. Oriental Ceramic Products Pvt. Ltd. Vs. Calcutta Municipal Corporation, held that Article 113 of the Limitation Act would also apply to a counterclaim, and as in the present case the counter-claim had been filed much beyond the prescribed period of limitation, the same was grossly barred by time and could not be accepted.

Mr. R. K. Mohanty, Learned Counsel appearing for the Petitioner, assails the aforesaid order of the Court below on the following grounds:

(a) The Learned Trial Court was wrong in law in saying that the cause of action for the instant counter-claim was inexplicably absent in the written statement when the provisions of a counter-claim under the CPC clearly gives a right to the Defendant to get his case adjudicated by praying for a positive, decree in that regard without filing a separate suit and bereft of the written statement only if the cause of action arose before filing of written statement.

(b) The Learned Trial Court was wholly misconceived in law in applying the provisions of Article 113 of the Limitation . Act when the counter-claim of this Petitioner/Defendant No. 2 has to be adjudicated in terms of Article 65 of the Limitation Act as he has based his claim on title and therefore it was incumbent upon the Plaintiffs to contest such claim for title and establish adverse possession for more than 12 years.

(c) The impugned action of principle dispossession in the face of an admitted order of maintenance of status quo by both parties being a lis pendens action the Plaintiffs cannot take the plea of adverse possession so as to defeat the title of the Petitioner/Defendant No. 2 under Article 65 of the Limitation Act.

Mr. S. J. Pradhan, Learned Counsel for the Plaintiff Opposite parties, strongly resisted the submission of Mr. Mohanty. According to him the counter-claim was filed much beyond the prescribed period of limitation and, as such, the Court below rightly rejected the same. He further submitted that a counter claim filed in a suit is equivalent to a plaint and in consonance with Order 7, Rule 11 (d) CPC a plaint which is barred by time should be rejected. Thus the Court below has committed no illegality or irregularity and therefore this Court may not interfere with the impugned order.

I have heard Learned Counsel for the parties at length and perused the pleadings. A counter-claim can be raised by a Defendant in a suit in consonance with Order 8, Rule 6A CPC. Such a counter-claim is made in addition to the right of set off as per Order 8, Rule 6 CPC against the claim of the Plaintiff in respect of any right or claim, cause of action for which had accrued 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, irrespective of whether such counter-claim is in the nature of a claim for damages or not.

A counter-claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final Judgment in the suit, both on the claim made in the plaint and on the counter claim. The only embargo with regard to filing of a counter-claim is that the same should not exceed the pecuniary limits of the Court in which the suit is pending. In consonance with the provisions of the CPC if a counter-claim is filed by a Defendant, the Plaintiff shall have the liberty to file a written statement within the time fixed by Court.

A reading of the aforesaid provisions thus makes it clear that a cause of action accrued in favour of a Defendant against the Plaintiff, either before or after filing of the suit, can be raised as a counter-claim, but then such counter-claim must have arisen before the Defendant has delivered his defence or before the time limited for delivering his defence has expired. In the case at hand, as would be evident from the facts and submission made before this Court the cause of action for counter-claim, even according to Defendant No. 2, arose on 10-6-1987. The written statement was filed on 21-6-1987. Thus the cause of action for the counter-claim having arisen much before filing of the written statement the same was maintainable.

In consonance with the ratio of the decision of this Court in the case of Mangulu Pirai Vs. Prafulla Kumar Singh and Others, a counter-claim filed under Order 8, Rule 6A CPC is maintainable at any stage of the suit if the cause of action therefore accrues against the Plaintiff either before or after filing of the suit, but before delivering his defence, or before the time limit for delivering his defence has expired. This Court also in case of Biswanath Sahu v. K. Somanath Subudhi reported in 70 (1992) CLT 218 reiterated the same view.

The Trial Court however has rejected the counter claim on the ground that the date on which the said counterclaim arose being 10-6-1 987, the same was barred by time on 10-6-1987 when the counter-claim was filed. There is no quarrel with regard to the aforesaid legal proposition. But then whether a counter-claim is barred by limitation or not and whether it can be entertained or not goes to the merit of the counter-claim. In other words, whether a counter-claim is maintainable or not, depends upon the written statement filed by the Plaintiff ,to the said counter-claim, question of limitation being dependent on facts, it can only be decided after objection/ written statement is filed. Thus, not entertaining the counter-claim which was otherwise filed in consonance with the provisions of Order 8, Rule 6A CPC and rejecting the same at the very threshold was not justified. In other words, if a counter-claim has been filed in respect of a cause of action which arose before filing of the written statement and otherwise satisfies the criteria stipulated under Order 8, Rule 6A CPC the same can be entertained, but then its maintainability has to be considered only after filing of the written statement by the Plaintiff.

In view of the discussions made above, I dispose of this Writ Petition quashing the impugned order passed by the Court below and directing the said Court to accept the counterclaim filed by the Petitioner and deal with the same in consonance with law after the Plaintiffs filed their objection/written statement.