IMPORTANT POINT
The main legal point established in the judgment is the applicability of the laws of limitation and the circumstances under which a counter claim can be filed after the filing of the written statement.

JUDGMENT :

1. This revisional application has been filed by the plaintiff in Title Suit No. 293 of 2018. The order dated September 9, 2021, passed by the learned Civil Judge (Senior Division), 3rd Court at Howrah is under challenge. By the order impugned, the counter claim filed by defendant in the suit, was accepted.

2. Mr. Mukherjee, learned senior advocate appearing on behalf of the plaintiff, has assailed the order impugned on two grounds :

(a) The law did not provide any option to file a counter claim after the written statement had been filed.

(b) The document which has been challenged in the said counter claim was executed on May 28, 2016 and the knowledge of the same was available to the defendant from February 8, 2017. Yet, the counter-claim was filed belatedly.

(c) As the counter claim seeks to impugn a document which was in the knowledge of the defendant for more than three years. The cause of action was ex facie barred by the law of limitation.

3. Mr. Mukherjee, has taken the court through various paragraphs of the plaint, applications and the counter claim. Reliance has also been placed on the decision of this court in the matter of Serajul Alam Mondal & Ors. Vs. Hafiza Bibi & Ors., in C.O. 3556 of 2019, reported in 2021 (2) ICC 777. According to him, this court had held that challenge to a deed of sale executed on April 19, 1954, after almost 11 years from the date of knowledge, was ex facie barred by law. On such finding, this court had rejected a prayer for amendment of the plaint.

4. Mr. Mukherjee further contends that the counter claim was filed after framing of issues and, hence, even going by the law laid down by the Hon’ble Apex Court in the recent past, the said counter claim could not have been filed at such a belated stage.

5. Mr. Tanmoy Mukherjee, learned advocate appearing on behalf of the defendant/opposite party, submits that the learned court below did not decide the merit of the cause of action pleaded in the counter claim. All that the learned court decided was that at the stage of admission of the counter claim, the question of limitation could not be decided. Limitation was a mixed question of law and fact. The learned court further held that the law provided ample scope for acceptance of the counter claim belatedly, even after the written statement had been filed. Referring to the counter claim, learned Advocate submits that the case of the defendant was that the impugned deed was executed in the teeth of an order of injunction. Such being the position, the deed of sale was ipso facto void and was not required to be avoided. Hence, the law of limitation would not apply while challenging such a deed. Learned Advocate submits that when an instrument is voidable, the question of avoiding the same will arise and the law of limitation would be pressed into operation. On this issue, Mr. Tanmoy Mukherjee relies on a decision of the Hon’ble Apex Court in the matter of Balvant N. Viswamitra vs. Yadav Sadashiv Mule, reported in (2004) 8 SCC 706.

6. In the said decision, the Hon’ble Apex Court held that a decree which was void ab initio was a nullity and was not required to be challenged. On the contrary, a decree which was irregular or erroneous would not be a nullity and its invalidity could not be set up whenever and wherever it was sought to be enforced or relied upon. The said decree would have to be challenged.

7. On this principle Mr. Mukherjee further relies on a decision of the Hon’ble Apex Court in the matter of Prem Singh & Ors. Vs. Birbal & Ors., reported in (2006) 5 SCC 353. In this case, the Hon’ble Apex Court specifically laid down the principle of law that when a transaction was void, a suit challenging such transaction could be instituted at any time and the provisions of the Limitation Act would not be attracted.

8. Next, it is contended that in the decision of Ranganayakamma vs. K.S. Prakash, reported in (2008) 15 SCC 673, the Hon’ble Apex Court laid down the principle that the applicability of t