The main legal point established in the judgment is that the amendment of the written statement to add a counter-claim cannot deprive the plaintiff of the valuable defence of limitation and must adhere to the specific requirements for filing a counter-claim.

1. An order of the trial court permitting the first defendant to amend his written statement in order to raise a counter-claim is challenged by the plaintiff in this revision.

2. The suit for money was filed in 1976. First defendant filed his written statement on 31-1-1977 and additional written statement on 28-7-1977. Replication was filed on 31-8-1977. After settlement of issues the case was pending trial for a long time. Plaintiff closed his evidence and the examination of the first defendant was about to be completed.

3. At that time in 1985, after more than 6 years from the date of filing of the written statement, 1st defendant moved for amendment of his written statement to plead a counter-claim on payment of court fee. Inspite of the fact that the claim has become barred by limitation the trial court allowed the same on the ground that in the interest of justice and in order to avoid multiplicity of suits it has to be allowed since it is not likely to prejudice the plaintiff.

4. I fail to understand the logic behind the reasoning of the trial court. Counter-claim is just the same as a plaint in a cross-suit. Under S.3(2)(b) of the Limitation Act it shall be treated as a separate suit and shall be deemed to have been instituted on the date on which the counter-claim is made in court. Under 0.8 R.6A of the Code of Civil Procedure the counterclaim can be in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the is suit. But it must be regarding a claim that accrued before the defendant delivered his defence or before the time limited for delivering his defence has expired. Bat the question of filing a counter-claim arises only after the suit is filed and there is nothing preventing the defendant from filing a counter-claim. 0.8 R.6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he bad filed the written statement. What is laid down is only that the counter-claim can be filed provided the cause of action had accrued to the defendant before he delivered his defence or before time fixed for delivery of defence has expired. (See Mahendra Kumar v. State of M.P. (1987-3 SCC 265). That means on such a cause of action counter-claim could be filed before the expiry of the period of limitation if the suit is then pending and is at a stage that it could conveniently be entertained. R.6B of 0.8 of the Code specifically provides that where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he stall, in his written statement, state specifically that he does so by way of counter-claim. Under R.6C of 0.8 of the Code the plaintiff has the right to ask for and the court has the right to exclude any counter-claim to be decided in an independent suit without being disposed of as a counter-claim in the suit. That may be in cases where due to the nature of the counter-claim or the stage at which it was filed the court thinks that it cannot be tried in that suit and could be tried in a separate suit.

5. If the cause of action and the claim in a plaint presented before court if barred by the law of limitation the court cannot proceed with the suit and the court is not bound to issue process. I have already stated that a counterclaim is just like a plaint in a cross-suit and it must be deemed to have been instituted on the date on which the counter-claim is made in court. That means if the cause of action or the claim is barred by limitation on the date en which the counter-claim is made in court the court cannot entertain the same. When written statement already filed is allowed to be amended by adding a counter-claim the amendment also takes effect as on the date of the original written statement. That means if the claim was not barred on the date of the original written statement but barred on the date when the amendment was sought for or allowed, the defendant is thereby getting a successful opportun