Full Judgment Text
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PETITIONER:
SMT. SHANTI RANI DAS DEWANJEE
Vs.
RESPONDENT:
DINESH CHANDRA (DEAD) BY LRS
DATE OF JUDGMENT: 18/09/1997
BENCH:
G.N. RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The short question that arises for decision in this
appeal is whether the application filed under order VIII
Rule 6 A of the Code of civil procedure on 22.6.85 by the
defendant respondents in Civil Case No. 248/82 pending in
the Court of learned Munsiff at Serampore was barred by the
provision of order VIII Rule 6A of the Code of Civil
procedure. By the impugned order, it has been held that such
application was not barred under Order VIII Rule 6A of the
Code of Civil procedure even after filing the written
statement, such an application can be presented provided the
cause of action for filing the counter claim had arisen
before or after the institution of the said suit and such
cause of action had continued till the filing of the written
statement. It was sought to be contended by the appellant
that once the written statement is filed. such application
for counter claim under Order VIII Rule 6A is ex facie
barred.
In our view, the impugned decision does not warrant
interference. Such question was specifically raised before
this Court in Mahendra Kumar and Ors vs. state of Madhya
Pradesh and Ors. (1987 (3) SCC 265). It has been held by
this Court that right to file a counter claim under Order
VIII Rule 6A of the code of Civil Procedure is referable to
the date of accrual of the cause of action. if the cause of
action had arisen before or after the filing of the suit,
and such cause of action continued upto the date of filing
written statement or extended date of filing written
statement, such counter claim can be filed even after filing
the written statement. The said Civil Case No. 248/82, in
which the application under Order VIII Rule 6A has been
filed by the defendant respondents was has been filed by the
defendant respondents was instituted on 15.7.82 and the
application under Order VIII Rule 6A was presented on
22.685. It cannot be held that the cause of action for the
suit or counter claim was ex facie barred by limitation
under Limitation act. It was been sought to be contended by
the learned councel for the appellant that in the instant
case, the cause of action had arisen long before the
institution of the said civil case No. 248/82 and,
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therefore, the suit and counter claim were barred under the
Limitation Act. Such question was not raised before the
Court below and, therefore, had not been gone into. It is
therefore, not necessary for this Court to decide the same
because the question of limitation regarding the suit if
raised will be decided after ascertaining the date of
accrual of the cause of action on the basis of relevant
materials to be placed on record. We are therefore, not
expressing any opinion on the said contention sought to be
raised by the learned counsel for the appellant, for the
first time before this Court. As the application under order
VIII Rule 6A is not ex facie barred the impugned order
cannot be held to be incorrect on the grounds urged before
the court below . We therefore find no reason to interfere
with the impugned order. This appeal, therefore, fails and
is dismissed without any order as to costs.
It appears that C.S. No. 178/80 and Civil Case 248/82
have been directed to be heard analogously before the Court
of the learned Munsiff. Since both the suits are pending for
a long time, it is only desirable that both the suits should
be disposed of as early as practicable preferably within a
period of six months from the date of communication of the
order. We reasonably expect that the Trial Court would be
alive to the urgency of the disposal of the suits
expeditiously and will take all necessary. Steps in that
regard.