Smt. Shanti
Rani Das Dewanjee Vs. Dinesh Chandra (Dead) by LRS [1997] INSC 743 (18 September 1997)
G.N.
RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
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, 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.
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