Plea for counter-claim to declare agreement void, barred by limitation.

1. Defendant in O.S.No. 576 of 1992 on the file of the Additional District Munsif Court, Ambasamudram is the revision petitioner.

2. Respondent herein filed a suit for specific performance of an agreement for sale alleged to have been executed by the petitioner herein. The suit was filed before end of 1992. Written statement was also filed by the petitioner.

3. After issues were suggested, the case was included in the list. Plaintiff was examined as P.W.1 and when the case was posted for evidence of P.W.2, an application was filed in I.A.No. 426 of 1997 seeking permission to file counter claim. In the affidavit in support of the application, it is averred that she wanted to declare the agreement as void and on 27. 1997, since the plaintiff trespassed into the property, she wanted recovery of possession in the suit itself.

4. The same was seriously opposed by the plaintiff and by the impugned order the lower court rejected the permission sought for. That means the counter claim was refused to be entertained.

5. The same is challenged in this revision.

6. ‘Notice of motion’ was ordered. An interim stay for a period was also granted by the learned Judge of this Court. After the respondent entered appearance. I heard the counsel on both sides.

7. The only question that requires for consideration is, whether the order refusing to entertain counter claim is justified or not.

8. Under Order 8, Rule 6A/(1) enables the defendant to file a counter -claim. It read thus,

“6A. Counter-claim by defendant. (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or nots: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.”

The lower court on two grounds held that the counter claim cannot maintained (1) the written statement is already filed and consequently the cause of action is either barred or cause of action arose after the filing of the written statement and hence cannot be subject of a counter claim.

9. In Mahendra Kumar v. State of M.P., 1987 (3) S.C.C. 265. Their Lordships considered this question in paragraph 15 of the judgment. Their Lordships said thus:

“15. The next point that remains to be considered is whether Rule 6-A of Order 8 of the Code of Civil Procedure bars the filing of a counter claim after the filing of a written statement. This point need not detain us long, for Rule 6-A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6-A ( 1 ) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6-A(1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A(1) of the Code of Civil Procedure. As the cause of action for the counter- claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule.