Filing of separate-petition regarding dismissal of counter-claim not necessary

ORDER :-After hearing learned Counsel at some length, I have come to the conclusion that the civil revision petition need not have been filed at all. Although this is one manner of stating the legal position, I will have to deal with the revision, as it has been preferred, in order to be able to say that it need not have been filed. The following are the circumstances in which the revision has been filed. The respondent instituted a suit against the petitioners herein. It was a suit for goods sold and delivered. The respondent prayed for a decree against the defendants in a certain sum. The defendants entered appearance and filed a written statement. In their pleadings in defence the defendants not only denied the suit claim, but also made a counter claim as against the plaintiff. Issues were framed in the suit on the above pleadings between the parties. The suit was set for trial. But on the date of hearing, the defendants did not appear either in person or by Counsel. The Court accordingly proceeded ex parte and gave Judgment in favour of the plaintiff. While doing so, the court decreed the plaintiff's claim and dismissed the defendants' counter-claim.

2. The defendants thereupon filed an application in I.A. No. 301 of 1980 to set aside the decree passed in the manner aforesaid. The application was filed within the time limit prescribed by the law for such applications. Some time later, the defendants apparently thought that this application would not serve his purpose fully in restoring the suit for trial. They obviously were under the impression that the application may be regarded as having to be confined in its scope to set aside only the ex parte decree obtained by the plaintiff, that is to say the decree in so far as it granted the suit claim as against the defendants. It was imagined by the defendants that this application would not comprehend, with- in its scope, the other aspect of the ex parte disposal of the suit, namely, the dismissal of the defendants' counterclaim, following, the default in the appearance of the defendants at the trial. Acting on this supposition, the defendants filed a distinct and separate application as yet unnumbered, for setting aside that part of the judgment of the trial Court in which the defendants' counter-claim was dismissed for default. Since this application was not filed within thirty days from the date of the decree, the defendants thought it fit to file an application under Section 5 of the Limitation Act to condone the delay. This application, I.A. 217 of 1981 was opposed by the plaintiff. The trial Court, after considering the merits, dismissed the application, observing that there was no sufficient cause for condonation of the delay. The effect of the dismissal of I.A. 217 of 1981 was, of course, the rejection of the unnumbered application for setting aside the decree in so far as the dismissal of the defendants counter-claim was concerned.

3. This revision has been brought by the defendants against the order passed by the trial Court dismissing I.A. 217 of 1981 filed under Section 5 of the Limitation Act.

4. To start with, the attempt of Mr. Ananthakrishnan Nair, learned Counsel for the defendants, was to make out that there was sufficient cause for the delay and the Court below had completely missed the grounds on which it had been made out. As the arguments proceeded, however, learned Counsel submitted that there was really no need at all in a case of this kind for his clients to have filed a distinct and separate application in so far as the counter-claim was concerned in an effort to restore the suit. Learned Counsel submitted that although the defendants' counter-claim in one sense, can be regarded as based on a distinct cause of action, it nevertheless was an integral part of the proceedings in the same suit in which the plaintiff had filed a claim against the defendants : He further pointed out that there was one single judgment which disposed of both the plai