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2014 Supreme(Ori) 52
HIGH COURT OF ORISSA
Dr. B.R. SARANGI, J.
Gokula Chandra Das and others - Petitioners
Versus
Pramod Kumar Pradhan and others - Opp. Parties
W.P. (C) No. 5951 of 2012
Decided on : 11th February, 2014
For Petitioners: M/s. N.C.Pati, M.R.Dash and B. Das
For Opp. Parties : M/s. S. Nayak, K.B.Kar, A.K.Parida & S. Pattnaik (for Opp. party No.1), M/s. S. Nayak, K.B.Kar, S. Pattnaik and D. K. Pattnaik (for opp. party No.2 and 3)
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Order 6, Rule 17 - Counter claim by way of amendment of the written statement - Application rejected - Writ - Defendants by way of counter claim can approach the Court and the said counter claim is to be treated as a separate suit and shall be deemed to have been instituted on the date the said counter is made - Plaintiffs in original suit have also a right to file additional written statement to the counter claim even if the main suit is dismissed for default - Counter claim shall proceed and is to be decided on merit - Counter claim can be filed at any stage of the suit by the defendant and the only limitation is the cause of action must have arisen before or after filing of the suit but before the defendants had delivered their defence.
In essence, the counter claim can be treated as a cross suit before the opposite parties filed additional written statement against the said counter claim, challenging the same as barred by limitation. In that case Court has to consider the same by framing issues while deciding the counter claim. But at the threshold the counter claim cannot be rejected as barred by limitation. The limitation with regard to lodging of counter claim is to be considered from the date of accrual of cause of action and not from the date of filing of written statement.
2. CIVIL PROCEDURE CODE, 1908 - Order 8, Rule 6, Order 8, Rule 6A - "Set-off", "counter claim" - Distinction - While set-off is a defence, the counter claim is more than that of a suit - Counter claim need not be an action of the same nature as the original action or even analogous thereto - Counter claim is not confined to a money suit only - Even after filing of written statement or before evidence is recorded and issues are settled, the Court is only competent to take cognizance in separate suit to entertain the plea of counter claim - Separate claim and a separate suit for the separate claim are maintainable and it is set off. (Para - 7)
3. LIMITATION ACT, 1963 - Art. 58 - Suit - Counter claim Limitation - The starting point of limitation is to be considered depending upon the facts and circumstances of each case - For any other declaratory suit, the limitation is three years as prescribed under the Article when the right to sue first accrues.
The right to sue under Article 58 of the Limitation Act which is the residuary article, on suits relating to declarations is not there until an accrual of the right asserted and its infringement or at least a clear and unequivocal threat to infringe that right by the defendants against whom the suit is instituted. Though there is no reference in Article 58 relating to knowledge of a party, there may be cases where the nature of the right imports knowledge of certain facts and in such cases the right to sue cannot be said 'to arise until a party had the necessary knowledge.
Knowledge means a party must have definite knowledge of the decree in a certain suit and when the records were inspected would be date of knowledge and limitation would run from that date. (Paras - 11 and 12)
JUDGMENT
Dr. B.R. SARANGI, J. – The petitioners, who are the defendants in the Court below, have filed this application seeking to quash the order dated 19.03.2012 passed by learned Civil Judge (Junior Division), Khurda in T.S.No. 16 of 2000 rejecting the application filed under Order 6, Rule 17 of the Code of Civil Procedure to introduce the counter claim by way of amendment of the written statement.
2. The short fact of the case, in hand, is that the opposite parties being the plaintiffs, filed a suit for permanent injunction before the learned Civil Judge (Junior Division), Khurda registered as Title Suit No. 16 of 2000 stating that one Narasingha Panigrahi was the owner in possession of Sabik Plot No. 449/1139 corresponding to Hal Plot No. 438 measuring an area of Ac. 0.058 dec. under Khata No. 141 of Mouza Sanapalla and in order to meet his legal necessities, the recorded owner, namely, Narasingha Panigrahi sold the suit land along with other properties to Pravakar Pradhan by registered sale deed dated 21.10.1963 and delivered possession. Therefore, Pravakar Pradhan, who was the father of the plaintiffs, was the rightful owner in possession of the suit land and after his death, the plaintiffs have become the owner in possession. In the R.O.R. of 1961, the suit land was recorded in the names of Batakrushna Dash (father of the present defendants) and Nilamani Devi. Pravakar Pradhan filed Title Suit No. 12 of 1964 in the Court of Munsif, Khurda and during pendency of the said suit, Batakrushna Dash died and his widow and five sons were substituted and ultimately the suit ended in compromise between the parties on 01.08.1966. According to the plaintiffs, Pravakar Pradhan being the true owner is in possession of the suit land and the defendants were not to disturb his possession. In spite of compromise decree, since the defendants disturbed the possession of the plaintiffs, a proceeding under Section 144 of the Cr.P.C. was initiated and the defendants took a plea disputing the title of the plaintiffs and denying the decree passed in the said suit. Therefore, the present suit bearing Title Suit No. 16 of 2000 has been filed by Pravakar Pradhan seeking permanent injunction.
3. The defendant-petitioners' case is that Narasingha Panigrahi was not the owner of the suit land. The plaintiffs have not acquired any title over the suit land by virtue of the so called sale deed executed by Narasingha Panigrahi and the compromise decree, which was passed in T.S.No. 12 of 1964, being a fraudulent one, the same cannot bind defendant Nos. 3 to 5, who were minors and the provisions under Order 32, Rule 7 CPC have not been complied with as the defendant Nos. 1 and 2 have not put their signatures in any compromise petition, thereby the compromise decree is not binding on the defendants and the same was not for the benefit of the minors. Apart from the same, it is stated that the plaintiffs are not in possession of the suit land and they have filed a petition to adduce certain documents of the decree in the previous suit and some rent receipts, to which the defendants have filed objection. Similarly, the defendants also filed a petition to call for the previous suit records. By order dated 30.04.2009 the trial Court allowed the petition, filed by the plaintiffs and rejected the application of the defendants. Then the defendants filed W.P.(C) No. 10592 of 2009. This Court by order dated 29.10.2009 disposed of the same with a direction to the defendants to file a better petition. Thereafter, the defendants by giving better particulars, filed a petition and the same was rejected. Again the defendants filed W.P.(C) No. 11751 of 2010 and by order dated 15.07.2011 the said writ petition was allowed and the Trial Court was directed to call for the records of the previous suit. Pursuant to the order of this Court, the trial Court called for records and the defendants on inspection of the same, found that several illegalities have been committed while obtai
