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High Court Of Calcutta
DIBYENDU BHUSAN DUTTA
ORIENTAL CERAMIC PRODUCTS PVT.LTD. - Appellant
Versus
CALCUTTA MUNICIPAL CORPORATION - Respondent
C. O. 265 Of 1999
Decided On : 04/23/1999
COUNTER-CLAIM - LIMITATION - REJECTION - MAINTAINABILITY - PREJUDICE TO PLAINTIFF - ORDER 8 RULES 6A TO 6G OF CPC - ORDER 7 RULE 11 (D) OF CPC - SECTION 3 (2) (B) OF THE LIMITATION ACT - AIR 1987 SC 1395 - AIR 1991 KARNATAKA 283 - 90 CWN 898 - DELAYED FILING OF COUNTER-CLAIM - BAR BY LIMITATION - REJECTION OF COUNTER-CLAIM - UPHELD.
Fact of the Case:
The defendants in a suit for eviction filed a counter-claim after the issues were framed and the plaintiff's evidence was closed. The trial court rejected the counter-claim as barred by limitation and likely to cause prejudice to the plaintiff. The defendants challenged this order in revision.
Finding of the Court:
The court held that the counter-claim was barred by limitation as it was filed more than three years after the cause of action accrued. The court also held that the counter-claim was likely to cause prejudice to the plaintiff as it was filed at a belated stage and the plaintiff had no notice of it when he went to trial.
Issues: 1. Whether the counter-claim was barred by limitation? 2. Whether the counter-claim was likely to cause prejudice to the plaintiff?
Ratio Decidendi: 1. The court held that the counter-claim was barred by limitation as it was filed more than three years after the cause of action accrued. The court relied on Order 8 Rule 6a (1) of CPC, which provides that a counter-claim must be set up before the defendant has delivered his defence or before the time limit for delivering his defence has expired. The court also relied on Order 7 Rule 11 (d) of CPC, which provides that a plaint shall be rejected if it appears from the statement in the plaint that the suit is barred by any law. The court further relied on Section 3 (2) (b) of the Limitation Act, which provides that a counter-claim shall be treated as a separate suit and shall be deemed to have been instituted on the date on which it is made in Court. 2. The court held that the counter-claim was likely to cause prejudice to the plaintiff as it was filed at a belated stage and the plaintiff had no notice of it when he went to trial. The court relied on the decision of the Karnataka High Court in AIR 1991 Karnataka 283, which held that a counter-claim should be filed before the issues are settled and at most before the evidence is adduced. The court also noted that the defendants had not disclosed any reason for the delay in filing the counter-claim.
Final Decision: The court dismissed the revision petition and upheld the trial court's order rejecting the counter-claim.
( 1 ) THIS is an application under S. 115 of the CPC directed against the order dated July, 15, 1998 passed by the Ld. Assistant District Judge, First Court, Barasat in Title Suit No. 876 of 1993 rejecting the counter-claim made by the defendants of the suit in their application under Order 8, Rule 6a of the CPC filed before the Court on 5th May, 1998.
( 2 ) THE Calcutta Municipal Corporation filed the suit for eviction upon termination of licence and also for damages. The plaint case, in a nutshell, may be stated as follows. The plaintiff is the owner of the suit land described in the schedule of the plaint. By an agreement dated 10-5-75 the plaintiff had granted leave and licence for a term of 21 years to one Moloy Kr. Banerjee, the defendant No. 2, carrying on business under the name and style of National Ceramic at Chowringhee Road, Calcutta, to use and occupy the suit land for the purpose of removing, at his own cost, silt deposits in the pre-settling tanks of the Corporation at its Palta Water Works for manufacturing bricks and allied products. Subsequently, the said Moloy Kr. Banerjee has assigned his rights and liability under the aforesaid agreement to the defendant No. 1, M/s. Oriental Ceramic Products Private Limited, with permission of the plaintiff. The possession of the suit land was delivered first to the defendant No. 2 and thereafter to the defendant No. 1 company. The defendant company failed to discharge its obligations under the agreement by reasons of their failure to raise boundary wall, to construct bridge over the settling tanks, to lay pipes, trolley lines etc. for the purpose of removal of the silts from the settling tanks to the defendants factory and also to pay the licence fees in terms of the agreement. The plaintiff accordingly terminated the licence with a notice dated 13-12-86 upon the defendants but they have not vacated the suit land in compliance with that notice and hence this suit for eviction from the suit land and also for damages to the extent of Rupees 3 lacs 69 thousand and odd.
( 3 ) THE defendants filed written statement denying that they have violated terms and conditions of the agreement dated 10-5-75 and contended, inter alia, that laying pipe, trolley lines etc. were optional on their part. Their further case in the written statement is that the plaintiff had not de-watered the settling tanks as a result of which the defendants could not extract silts from the settling tanks and manufacture bricks and other allied products. Thus, shifting the responsibility for non-performance of the agreement upon the plaintiff, the defendants prayed for dismissal of the suit.
( 4 ) ). Issues were framed and recording of plaintiff's evidence commenced on 14-1-98 and the plaintiff's evidence was closed on 25-3-98. Recording of evidence of the defendants commenced on the other hand, on 9-4-98. One witness was examined on behalf of the defendants in part on 9-4-98 and the suit was adjourned to 5-5-98 for further examination of that witness and also examination of other D. Ws.
( 5 ) AT this stage of the suit, the defendants came forward with an application on 5-5-98 setting up a counter-claim and praying for a decree for damages amounting to an ascertained sum of Rs. 2,39,54,900. 59, the break-up of which has been given in clauses (a) and (b) of the schedule of damages annexed with that application. It is alleged by the defendants that although the defendants were granted licence by the plaintiff for excavating silt from the pre-settling tanks in the suit properties for the purpose of making the mechanised bricks with the help of that silt after the settling tank is de-watered by the plaintiff. The allegations in support of their counter-claim may be summarised as follows. After getting possession of the suit property the defendants duly cleared the same and made a fencing of barbed-wire for protection and preservation of the property after spending a good amount of mo
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