Dr. D.Y. Chandrachud, J.

1. Rule. Counsel for the respondent waives service. By consent, the Rule is made returnable forthwith. The Appeal is taken up for hearing and final disposal, by consent and on the request of learned counsel.

2. This Appeal at the behest of the Defendant arises from a decision of a learned Single Judge dated 21 September 2011 by which the Court : (i) condoned the delay in filing the written statement, subject to payment of costs quantified at Rs.50,000/-; and (ii) rejected the prayer of the Plaintiff to set up a counter claim or, in the alternative, an equitable set off, on the ground of limitation.

3. A Summary Suit was instituted in 1997 on the Original Side of this Court. No Summons for Judgment was taken out by the Plaintiff, but in 2009 a Notice of Motion was taken out for condonation of delay in taking out the Summons for Judgment. The Motion for condonation of delay was dismissed, following which the Suit was directed to be tried as a regular suit. At that stage, the Court had issued a direction to the Defendant to file the written statement within twelve weeks. The Defendant failed to do so. Eventually, a Notice of Motion was taken out by the Defendant-Appellant for condoning the delay in filing the written statement and for taking the counter claim on record. By the written statement, the Defendant also sought to set up a counter claim and set off. The learned Single Judge allowed the Notice of Motion for condonation of delay in filing the written statement subject to payment of costs quantified at Rs.50,000/-. However, the learned Single Judge was of the view that at that stage the Court had the discretion to consider as to whether the counter claim was, ex-facie, barred by limitation. The Court held that the cause of action for the counter claim which was essentially a claim for damages, would have arisen in the year 1995-96 on account of the alleged delay on account of the Plaintiff in completing the project. Hence, the view of the learned Single Judge was that the Defendant should not be allowed to make the counter claim after nearly sixteen years.

4. We find considerable degree of force in the contention of the Appellant that at this stage, the learned Single Judge was not justified in rejecting the counter claim on the ground that it was barred by limitation. If the Defendant were to file a separate suit, there would be no occasion for the registry of this Court to decline to register the suit on the ground that the claim is barred by limitation. Whether the claim is barred by limitation is a matter which would have to be determined upon an issue being framed under Order XIV, Rules 1 and 2 of the Code of Civil Procedure, 1908. Limitation would raise a mixed question of law and fact and ought not to have been decided on an a priori basis, purely on affidavits. In South Konkan Distilleries and Another Vs. Prabhakar Gajanan Naik and others (2008)14-SCC-632), the issue was whether the rejection of an application for amendment of the written statement and counter claim was proper. The Supreme Court held that by way of an amendment, the Appellants were seeking to make out a new case that they were incurring damages on a continuous basis, which was contrary to the pleadings in the written statement and the counter claim which had already been filed. The Supreme Court held that there was no dispute on the question of limitation and, hence, it would not be fair and proper to hold that the Courts below had committed any illegality or acted with material irregularity in rejecting the application for amendment of the written statement and counter claim.

5. The facts in the present case are, it must be noted, different. The Defendant seeks to set up a counter claim or, in the alternative, a set off, in law and on equitable grounds. Prima facie, the question of limitation would not be relevant when an equitable set off is sought to be pleaded. Be that as it may, we are not expressing a view o