1997 Supreme(Raj) 718
Supreme Court
Honble G.N. RAY & G.B. PATTANAIK, JJ.
Smt. Shanti Rani Das Dewanjee - Appellant
Versus
Dinesh Chandra Day (dead) by Lrs. - Respondents
Civil Appeal No. 2766 of 1987
Decided On : September 18, 1997
S.K. Bhattarcharya, Pradeep Kumar and S.K. Bandhopadhyaya, Advocates, for Appellant Shankar Ghosh, Sr. Advocate, G.S. Chatterjee, Raja Chatterjee, Advocates, with him for Respondents
Headnote:Civil Procedure Code – Order 8 Rule 6-A – Defendant can file his counter claim – There is no limitation for doing so – Suit filed on 5.7.82 and defendent opted to file the counter claim on 22.6.85 – He is entitled to do so. (Para 2)
That right to file a counter claim under Order VIII rule 6-A of the Code of Civil Procedure is referable to the date of accrual of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued upto the date of filing written statement or extended date of filing written statement, such counter claim can be filed even after filing the written statement. (Para 2)
(2). In our view, the impugned decision does not warrant interference. Such question was specifically raised before this court in Madhya Kumar & Ors. vs. State of Madhya Pradesh and Ors. (1). It has been held by this Court that right to file a counter claim under Order VIII rule 6-A of the Code of Civil Procedure is referable to the date of accrual of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued upto the date of filing written statement or extended date of filing written statement, such counter claim can be filed even after filing the written statement. The said Civil Case No. 248/82, in which the application under Order VIII Rule 6-A has been filed by the defendant respondents was instituted on 15.7.82 and the application under Order VIII Rule 6-A was presented on 22.6.85. It cannot be held that the cause of action for the suit or counter claim was ex facie barred by limitation under the Limitation Act. It has been sought to be contended by the learned counsel for the appellant that in the instant case, the cause of action had arisen long before the institution of the said civil case No. 248/82 and, therefore, the suit and counter claim were barred under the Limitation Act. Such question was not raised before the Court below and, therefore, not necessary for this Court to decide the same because the question of limitation regarding the suit if raised will be decided after ascertaining the date of accrual of the cause of action on the basis of relevant materials to be placed on record. We are therefore, not expressing any opinion on the said contention sought to be raised by the learned counsel for the appellant, for the first time before this Court. As the application under Order VIII rule 6-A is not ex facie barred the impugned order cannot be held to be incorrect on the grounds urged before the Court below. We therefore find no reason to interfere with the impugned order. This appeal, therefore, fails and is dimissed without any order as to costs.
(3). It appears that C.S. No. 178/80 and Civil Case No. 248/82 have beendirected to be heard analogously before the Court of the learned Munsiff. Since both the suits are pending for a long time, it is only desirable that both the suits should be disposed of as early as practicable preferably within a period of six months from the date of communication of the order. We reasonably except that the Trial Court would be alive to the urgency of the disposal of the suits expeditiously and will take all necessary steps in that regard.