The court has a duty to return a counter claim exceeding its pecuniary limits for presentation before the proper court and to treat the counter claim as an independent suit.

S. Padmanabhan, J.

1. Second appeal is by the defendant. He was the Manager employed by the respondent in his proprietary concern. He had no salary. Terms of employment were covered by Ext. A1 agreement. He could draw amounts for travelling and incidental expenses, for which he had to render accounts. In addition, he was entitled to get share of profits also. The suit was filed for realisation of Rs. 3,805.00 as amount drawn but not accounted. While denying liability, the appellant made a counter claim of Rs. 8,000.00, for which he paid court fee. The suit was decreed. But the counter claim was left open without decision on the ground that it exceeded the pecuniary jurisdiction of the Munsiff. Appeal was also dismissed. Both the courts below took the stand that his remedy, so far as the counter claim is concerned, is only by way of a fresh suit, which may now be barred by limitation. The contention that the counter claim exceeding the pecuniary jurisdiction had to be returned for presentation before the competent court was met by the appellate Judge by saying that even if it was returned, it could have been filed only as a counter claim in a pending suit.

2. I think that both the courts below were not correct in what they did. The effect of the proviso to O.8 R.6A(1) is that a counter claim should not exceed the pecuniary limits of the jurisdiction of the court. Plaintiff denied the counter claim and contended that it is beyond the jurisdiction of the court. Still the Munsiff did not return it for presentation before the proper court. It is true that no application was filed by the plaintiff under R.6C for exclusion of the counter claim to be disposed of in an independent suit. But that fact does not relieve the duty of the court to return the counter claim, which is beyond its pecuniary jurisdiction. Otherwise a party may suffer on account of the inaction of the court by getting his claim barred by limitation.

3. Even though the counter claim is raised in the written statement, it shall have the same effect as the plaint in a cross suit and in the suit, the court is bound to dispose of the original claim and the counter claim. Plaintiff can file a written statement in answer to the counter claim, which is governed by the rules relating to written statements. The counter claim shall be treated as a plaint and governed by the rules applicable to plaints. That means, for all legal and procedural purposes, the counter claim shall be treated as an independent suit. The provisions of O.7 R.10 and 10A applicable to plaints are applicable to the counter claim contained in the written statement also as O.8 R.6A(4) clearly indicates. When the counter claim is found to exceed the pecuniary jurisdiction of the court, it has not only the right, but the duty also to return the counter claim for presentation before the competent court, for which it can fix a date also. That may be necessary in the interest of justice. When a party files such a claim ignorantly or inadvertently, the court has a duty to correct him or direct him. The court, which is not competent to entertain the claim, cannot retain it indefinitely till the suit is disposed of and then direct that he will have to go in for a fresh suit. The question whether he may be able to get limitation saved by resort to S.14 of the Limitation Act is a different thing and it is not as of right, but only on proof of certain conditions. The result is unnecessary harassment and prejudice. Act of court should not prejudice anybody.

4. Even when the counter claim is entertainable by the court, it is having the right and duty, in appropriate cases, to direct the counter claim to be tried as an independent suit if it ought not to be disposed of as a counter claim. So also, even if the suit is stayed, discontinued or dismissed, the counter claim will survive and it will have to be proceeded with and decided as an independent proceeding. There is no merit in the stand taken by the Appellate J