Counter-claims must be timely and justified; substantial delay without explanation can result in rejection, although courts retain discretion to evaluate circumstances.

Judgment :

B.P. Routray, J.

1. Heard Mr. A.P.Bose, learned Advocate for the Petitioner, and Mr. S.Mishra, learned counsel for Opposite Party.

2. Present Opposite Party filed the suit in C.S. No. 36 of 2020 praying for a declaration of his right title interest over the suit property along with conformation of possession.

3. Present Petitioner, who is the Defendant in said suit appeared there on 8^th July 2020 and filed his W.S. on 3^rd August 2022 along with a petition praying to accept the same at the belated stage. The Trial Court vide order dated 1^st March 2023 accepted the W.S. of the Defendant and accordingly settled the issue subsequently. After settlement of issue, awaiting the evidence from the side of the Plaintiff the Defendant filed a petition dated 5^th February 2024 raising his counter-claim for specific performance of contract in respect of the suit property based on an unregistered sale deed.

4. The prayer of the Defendant to adduce his counter-claim has been rejected vide impugned order dated 15^th May 2024 of the Trial Court on the ground that the prayer of the Defendant for leave to file counter-claim is time barred and secondly, no explanation has been offered by him as to the cause prevented him filing of such counter-claim at appropriate stage. But in the body of the impugned order certain observations have been made by learned Trial Court with regard to the merit of the counter- claim on the question of limitation. Said impugned order dated 15^th May 2024 is subject matter of challenge in the present CMP.

5. Mr. Bose, learned counsel for the Petitioner (Defendant) submits that at the time of seeking leave to raise counter claim the party is not required to substantiate his cause for not raising the same at the appropriate time. Nevertheless, as per the petition filed by the Defendant seeking leave discloses the fact that he was not in possession of some relevant papers when the Plaintiff has suppressed the material facts concerning the suit land relating to the interest of the Defendant therein. Therefore, it is submitted that the time period to submit the counter claim as per the provisions contained in Rule 6A of Order 8 was not properly appreciated by the Trial Court and most importantly some unnecessary observations have been made by the Trial Court touching the merit of his claim prejudging the issue.

6. Mr. Mishra, learned counsel for the Opposite Party (Plaintiff) on the other hand submits that in view of the time period prescribed for filing the counter claim, the rejection of the Trial Court not granting leave in favour of the Defendant cannot be said incorrect. He further submits that the leave to file counter claim almost after 45 months of appearance of the Defendant was not explained properly and therefore, the Trial Court has rightly rejected to grant leave for the same.

7. In terms of the provisions contained in Rule 6A of Order 8, the Defendant can set up his counter claim in addition to his right of pleading to set off, before the Defendant has delivered his defence or before the time limited for delivery his defence has expired. Explaining the proposition, Hon’ble Supreme Court in Ashok Kumar Kalra -vs- Wing CDR. Surendra Agnihotri & Ors., (2020) 2 SCC 394 have stated that:

17. The time limitation for filing of the counterclaim, is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause