A counter-claim is treated as a cross-suit and can be filed before the time limit for filing a suit on the same cause of action expires. The cause of action for the counter-claim must arise at any time prior to the filing of the written statement.

( 1 ) THE petitioner-defendants are aggrieved by the order passed by the learned Assistant District Judge, 10th Court, Alipore in Title Suit No. 19/86 rejecting the petitioners' additional written statement and counter-claim on the ground that the counter-claim is barred by limitation that the petitioners have not paid the requisite court fee for the said counter-claim.

( 2 ) BEING aggrieved, the defendants-petitioners have moved this Court in revision contending inter alia that the additional written statement and counter-claim filed by the petitioners have given the date on which the course of action arose as 24. 12. 87 and when admittedly this additional written statement and the counter-claim were filed within three years thereof, the counter-claim could not be rejected by the learned Judge on the ground when the petitioners appealed in this Court on 24. 4. 86 and prayed for time to file written statement, they can be said to be well acquainted with the facts of the suit at least since that date and consequently, this additional written statement and counter-claim having been filed more than three years thereafter, are barred by limitation.

( 3 ) THE Ld. Advocate for the petitioners submits that a counter-claim be treated as a cross-stilt and when in the said counter-claim the cause of action for filing the said counter-claim has been given as 24. 12. 87, at stage the counter-claim has to be accepted on its face value and until unless the present opposite parties contend by filing additional written statement that the counter-claim is barred by limitation and on taking evidence the learned Judge finds in favour of the opposite parties, the counter-claim cannot be rejected on the ground on which the learned Judge rejected it.

( 4 ) THE revision petition is opposed by the opposite parties contending, alia that the petitioners were not entitled to file counter-claim subsequent to the filing of the written-statement and in support a decision of the Orissa High Court reported in AIR 1985 Orissa, 260 (Kashi Biswanath Dev v. Paramanda Routrai) has been referred to.

( 5 ) ON behalf of the petitioners the Supreme Court decision reported in 1987 SC 1395 (Mahendra Kumar v. State of Madhya Pradesh) has been referred to and it has been submitted that in that decision the Supreme Court has observed that a counter-claim under Order 8 Rule 6a of the Code of Civil procedure could be filed even after the original written statement has been filed, that cause of action for filing such counter-claim, however, must arise at any time prior to the filing of the written statement an if within three years thereof such counter-claim is filed, then the Court cannot reject the counter-claim on the ground that it is barred by limitation.

( 6 ) WE have carefully considered the above Supreme Court decision. The Supreme Court in the decision has, in interpreting the words "time limited for delivering defence" has observed that a counter-claim, which treated as a plaint in cross suit, can be filed before time limited by limitation for filing the suit on the same cause of action expires and that such cause of action must arise at any time prior to the filing of the written statement.

( 7 ) IN this particular case also the counter-claim has been filed after the written-statement has been filed on 12. 1. 1988. But only because it is file after the original written-statement is filed, it cannot be rejected on the ground alone in view of the above Supreme Court decision. The decision of the Orissa High Court referred to above on behalf of the opposite parties must be held to have been overruled by the above Supreme Court decision Moreover, in Mangulu Pirai v. Prafulla Kr. Singh, AIR 1989 Orissa, 51 the Division Bench of the Orissa High Court relying on the Supreme Court decision in AIR 1987 SC 1395, has overruled that decision of the Orissa High Court. Therefore, that decision having been overruled, cannot be treated to be good law and