IMPORTANT POINT
A counterclaim must be filed within the limitation period, and failure to address this can lead to a material irregularity in judicial proceedings.

JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioner before this Court is a plaintiff in a money suit, and is aggrieved by the Order dated March 05, 2021 passed by Learned Civil Judge (Senior Division) 4th Court at Alipore District – South 24 Parganas in M.S. No. 33 of 2000 refusing the prayer of the petitioner for rejection of the counter claim of the opposite party/defendant. The petitioner being aggrieved by the order of learned trial Judge has come up before this Court with an application under Article 227 of the Constitution of India.

2. The case of the petitioner before the learned court below for rejection of counter claim may be summed up thus.

1. The defendant has appeared in the suit and filed written statement with purported counter claim.

2. It will be evident from the allegations made in the written statement that defendant’s right to claim for the purported counter claim and cause of action for the same expired long back in the year 2002, but the defendant filed her written statement with counter claim on or about 4th October 2005. Thus the counter claim is hopelessly barred by the law of limitation.

3. That the defendant has no right to set up her counter claim after expiry of period of limitation. As such the counter claim of the defendant be rejected without taking trouble for trial or for evidence on such counter claim.

3. The defendant/opposite party contested the petition of the petitioner/plaintiff by filing within objection, denying the allegations of the petition. It is the contention of the defendant/opposite party that the application for rejection of counter claim is not maintainable in law and facts. It is further contended that the defendant came to know about the institution of the suit from a letter of Sri Rajat Chowdhury, Advocate dated 25-05-2005 enclosing a copy of the plaint in which the plaintiff admitted receipt of Rs 73,000/-from the defendant. Hence the defendant’s counter-claim is not barred by Law of Limitation. It is also contended that direction was issued upon the Sheristadar to submit report in respect of whether the Court fees on the counter-claim filed by the defendant which already paid is correct or not. Accordingly dates were fixed on 13-12-2005, 20-02-2006 and 26-04-2006. Subsequently learned trial Court was pleased to accept the said counter claim filed by the defendant against which the plaintiff did not raise any objection. It is contended that the defendant’s counter claim is required to be adjudicated upon taking evidences and not to be thrown out at this stage on the alleged ground of Law of Limitation.

4. Upon considering the petition for rejection of counter claim and the objection filed therein the learned court below was pleased to dispose the said petition with the following observation

‘Having regard to the respective submissions of both the Ld. Advocates for the parties and taking note of the contents of the application and objections filed thereto and also on meticulous scrutiny of the case record it appears that plaintiff has brought the suit against the defendant claiming Rs. 35,000/-as damages in the year 2000 and the defendant appeared in the suit on 19.07.2005 and filed the written statement on 25-10-2005 along with counter claim and thereafter the W/S of the written statement of the defendant was accepted by order no. 34 dated 26.04.2006 which goes to show that the written statement along with the counter claim was entirely accepted. It further appears from the record that subsequently issues were framed and the suit was fixed for peremptory hearing on 02.05.2011 and since then the suit is pending for disposal. It also appears that during the stage of peremptory hearing the plaintiff has come up with the instant application praying for rejection of counter claim, after a gap of 13 years. I have carefully gone through the decisions referred from the side of the defendant and on careful perusal of the decision of the Hon’ble Apex Court in connection with SLP(C), No. 2