JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. This is a contest between two sets of defendants, the petitioners being defendant nos. 5, 7, 24(ka) and 24(kha) and the opposite parties-proforma defendant nos. 25 and 26 in the suit.

2. The dispute arises out of a suit for cancellation of a Deed of Exchange dated November 10, 1983 and for recovery of possession in respect of ‘ka’ schedule property against the predecessor of defendant nos. 1 to 8. The opposite party nos. 1 and 2 were arrayed as proforma defendant nos. 25 and 26 in the suit, bearing Title Suit No. 22 of 2003.

3. By the first impugned order, dated June 16, 2020, the trial court accepted the belated written statement filed by the defendant nos. 25 and 26/opposite party nos. 1 and 2 on contest with costs of Rs.9,000/. By the subsequent order dated March 9, 2021, the two applications of the revisionist petitioners, both under Order VIII Rule 6-C of the Code of Civil Procedure, were rejected on contest and the written statement, along with counter-claim, dated September 6, 2019 of opposite party nos. 1 and 2 was accepted.

4. Learned counsel for the petitioners contends that Order VIII Rule 6-A of the Code of Civil Procedure contemplates only counter-claims against the claim of the plaintiff. In the present case, the opposite party nos. 1 and 2 have filed the counter-claim against the defendants-petitioners as well. Such counter-claim against co-defendants, it is argued, is not maintainable in law.

5. Learned counsel further contends that the counter-claim was ex facie barred by limitation since the same was filed after about 17 years from the date impugned in the counter-claim.

6. The show-cause of the opposite party nos. 1 and 2 as well as their written statement were accepted after about 17 years’ delay. It is argued that the information of the suit, received by the advocate for the opposite party nos. 1 and 2, was allegedly received after an order was passed by this court, rejecting the plaintiff’s application for amendment of plaint under Order VI Rule 17 of the Code, seeking to introduce a similar relief as sought in the counter-claim. Hence, the opposite party nos. 1 and 2, being proforma defendants in the suit, were set up by the plaintiffs to defeat the order of the High Court by introducing a time-barred counter-claim.

7. Learned counsel for the petitioner further contends that it is evident from the counter-claim that the cause of action therefor was the ‘threat of dispossession’ against the opposite party nos. 1 and 2, which did not disclose any cause of action for the relief sought, that is, recovery of possession. Hence, the trial court, it is argued, acted without jurisdiction in accepting the belated written statement and in rejecting the petitioner’s application for exclusion of such counter-claim.

8. Placing reliance on the judgment of Ananta Halder vs. Haridashi Halder and Others, 2019 (1) ICC 182 (Cal), wherein this court had held, following a judgment of the Supreme Court and a previous order of this court, that unless costs were condition-precedent of the rest of the order, acceptance of costs would not tantamount to estoppel debarring the person accepting cost from challenging the said order, learned counsel contends that the costs granted by the first impugned order was received by the advocate appearing for the petitioners in the court below erroneously, without taking proper instruction from his clients, which would not, ipsofacto, debar the petitioners from preferring the instant challenge, since costs were not a pre-condition of accepting the written statement.

9. By placing reliance on Estate Officer, Haryana Urban Development Authority and Another vs. Gopi Chand Atreja, (2019) 4 SCC 612, learned counsel for the petitioner argues that the Supreme Court categorically laid down the law that the failure of the lawyer to take timely steps, resulting in causing delay, cannot be recorded as a sufficient cause within the meaning of Section 5 of the Limitation Act