The counterclaim against a co-defendant must consider the questions of law and fact, particularly regarding limitation and maintainability.

JUDGMENT

Dated this the 20^th day of November, 2025 The Original Petition is filed by the petitioner/second defendant challenging the order which dismissing the counterclaim application passed by the Additional Munsiff’s Court -II, Thiruvananthapuram in I.A No.15/2023 in O.S. No.961/2019.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

3. The case of the petitioner is that the 1^st respondent filed a suit for declaration against the 2^nd respondent to declare that she is the legal heir of her deceased father for the purpose of appointing herself as a member of the Board of the 2^nd respondent. The petitioner, being the 2^nd defendant, filed a written statement after filing of the suit, and subsequently, the 2^nd defendant, filed an application under Order VI Rule 17 CPC to amend the written statement, incorporating a counter claim under Order VIII Rule 6A of CPC, against the plaintiff as well as the 1^st defendant. The Trial Court dismissed the application on the ground that the counter claim is utterly barred by limitation, as the father of the 2^nd defendant is said to have died on 01.01.2014, the trial court held that the counter claim is barred by limitation. The said order is under challenge. The learned counsel for the petitioner submits that the issue of limitation involves both question of law and facts, and therefore, cannot be decided immediately as preliminary issue. It is also submitted that the counter claim is directed against the plaintiff, and it cannot be said that the counter claim is barred by limitation and therefore, the order under challenge is liable to be set aside.

4. On the other hand, learned counsel appearing for the respondents submits that, there cannot be a counter claim against the co-defendant and admits that the issue of limitation involves both questions of law and fact. But the Trial Court has not given any finding in respect of the counter claim made by the 2^nd defendant against the 1^st defendant, as there is a bar seeking any counterclaim against a co-defendant. That issue has to be dealt with by the Trial Court by rendering a finding on the I.A. Merely because the claim may be delayed or barred by limitation cannot be a ground, by itself, for rejecting the counterclaim. The counter claim can be filed from date on which the cause of action arose for the defendant to claim the right as per Article 123 of the Limitation Act as against the plaintiff.

Therefore, the order under challenge is liable to be set aside and remitted for fresh consideration, taking into consideration whether the reliefs sought by the petitioner/2^nd defendant against the co-

defendant are maintainable or not.

5. Accordingly, the Original Petition is allowed. The order passed on I.A. No.15/2023 dated 01.08.2023 is hereby set aside. The matter is remitted for fresh consideration, taking into consideration whether the reliefs sought by the petitioner/2^nd defendant against the co-

defendant are maintainable or not.

6. The Trial Court should also consider that the cause of action for the suit has arisen from 15.01.2018, the date on which the plaintiff/the 1^st respondent has submitted her application before the

1^st defendant Trust.

The Trial Court shall make an endeavor to dispose of the I.A as early as possible, if the parties co-operate.