A counter claim can be filed after a written statement if the cause of action accrued prior to its filing, provided it is within the limitation period.

JUDGMENT

With consent of both the parties, the appeal is heard at motion stage at admission.

2. This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC ) has been filed by the appellants against the impugned judgment and decree dated 15.12.2021 passed by the First Additional District Judge, Jaora, Ratlam in Regular Civil Appeal No. 14/2019 confirming the Judgment dated 07.04.2018 passed by Second Civil Judge, Class-I, Jaora, District Ratlam M.P. in Civil Suit No.2-A/2012 whereby the counter claim filed by the appellants is refused to be taken on record.

3. Facts emerged from the record are that the respondent no.1/plaintiff has filed a suit in the year 2012 for declaration of title, partition and permanent injunction against respondent/defendants nos.2 to 5 stating that one Shri Sewaji had a son named Rughnath who expired on 07.12.2011. The person Rughnath had two wives namely Nabibi (first wife) and after the death of Nabibai, his natra was done with Geetabai. Rughnath being the son of Sevaji got agricultural land of Village Hariyakheda Raka 9.975 Hectare with a house after the death of his father Sewaji. The Plaintiff/ respondent no.1 Bheruall claimed himself to be the son of Rughnath and first wife Nabibai. Respondent Nos.2 to 4 were stated to be children of Rughnath and Geetabai (second wife). As per the plaintiff/Bherulal, being son of Reghunath, he had 50% shares in the land of father Rughnath after the death of Rughnath. Therefore, the suit was filed.

4. Defendants nos.2 to 5 have filed their written statements before the learned trial Court and denied the plaint averments stating that Nabibai was not the first wife of Raghunath and plaintiff is not the son of Rughnath and therefore, he has not right in the suit property. On 28.06.2017, the appellants were added as defendants in the suit on the basis of an application filed for their impleadment as part of the said property was sold by defendant nos.1. to 4 to respondent no.2 to 5 during pendency of the suit by virtue of two sale deeds. After getting impleaded in the suit, the appellants have filed their written statements on 25.09.2017. Subsequently, on 16.02.2018, additional issued were framed. On 28.02.2018, i.e. 12 days later after framing the additional issues, appellants have filed an application under Order 8 Rule 6 of CPC alongwith the said application, they have also filed their counter claim for declaration and permanent injunction.

5. Thereafter, on 26.03.2018, respondent no.1/plaintiff has filed an application under Order 7 Rule 11 of CPC stating that counter claim being filed belated, cannot be taken on record. The learned trial Court vide order dated 07.04.2018 has decided the application filed by the plaintiff under Order 7 Rule 11 of CPC and allowed the same and resultantly, refused to take the counter claim of the appellants on record holding that the counter claim has been filed belatedly.

6. Being aggrieved by the order dated 07.04.2018, the appellants have preferred an appeal before the first appellate Court, but the learned first appellate Court dismissed the appeal vide impugned order dated 15.12.2021. Hence, the present appeal has been filed on behalf of the appellant.

7. Vide order dated 11.01.2022, this appeal is on two substantial questions of law that whether the counter claim of defendants 6 to 9 having been filed on 28.02.2018 by stating the cause of action to have accrued for filing of the same on 03.07.2017 could have been held to be barred by time in view of the filing of the written statement by them on 25.09.2017 and whether the Courts below have committed an error of law in misinterpretation the provisions of Oder 8 Rule 6(a) of the CPC and by not taking into consideration the judgment of Hon'ble Apex Court in the matter of Mahendra Kumar and Another vs. State of M.P. and others AIR 1987 SC 1395 ?

8. Learned counsel for the appellants has submitted that the learned appellate Court has committed error of law in co