Case Note & Summary
The appeal before the Supreme Court of India arose from a challenge to an order passed in Civil Case No. 248/82 pending before the Court of learned Munsiff at Serampore. The appellant, Smt. Shanti Rani Das Dewanjee, challenged the order by which the trial court held that an application filed by the defendant respondents, Dinesh Chandra (Dead) by LRS, under Order VIII Rule 6A of the Code of Civil Procedure, 1908 on 22.6.85 was not barred. The civil suit was instituted on 15.7.82 and the application for counter claim was presented on 22.6.85, after the written statement had been filed. The appellant contended that once a written statement is filed, an application for counter claim under Order VIII Rule 6A is ex facie barred. The Supreme Court referred to Mahendra Kumar and Ors vs. State of Madhya Pradesh and Ors. (1987 (3) SCC 265), where it was held that the right to file a counter claim under Order VIII Rule 6A 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 up to 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 Supreme Court found that the application under Order VIII Rule 6A was not ex facie barred by limitation under the Limitation Act. The appellant also sought to argue that the cause of action had arisen long before the institution of the civil case and therefore the suit and counter claim were barred under the Limitation Act. However, this question was not raised before the court below and therefore had not been gone into. The Supreme Court held that it was not necessary to decide the same because the question of limitation, if raised, would be decided after ascertaining the date of accrual of the cause of action on the basis of relevant materials to be placed on record. The Court expressed no opinion on that contention as it was raised for the first time before the Supreme Court. In conclusion, the Supreme Court held that as the application under Order VIII Rule 6A was not ex facie barred, the impugned order could not be held to be incorrect on the grounds urged before the court below. The appeal was dismissed without any order as to costs. The Court also noted that C.S. No. 178/80 and Civil Case 248/82 had been directed to be heard analogously before the Court of the learned Munsiff. Since both suits were pending for a long time, the Supreme Court directed that both suits should be disposed of as early as practicable, preferably within a period of six months from the date of communication of the order. The Court reasonably expected that the Trial Court would be alive to the urgency of the disposal of the suits expeditiously and would take all necessary steps in that regard.
Headnote
A) Civil Procedure - Counter Claim - Order VIII Rule 6A of Code of Civil Procedure, 1908 - Counter Claim After Written Statement - The right to file a counter claim is referable to the date of accrual of cause of action; if cause of action had arisen before or after filing of the suit and such cause of action continued up to 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 - In Civil Case No. 248/82 before Munsiff at Serampore, application under Order VIII Rule 6A filed on 22.6.85 was held not ex facie barred - Held that the impugned order did not warrant interference and the appeal was dismissed (Paras 1-2). B) Limitation Law - Suit and Counter Claim Limitation - Limitation Act, 1963 - Question of Limitation Not Raised Before Lower Court - The contention that cause of action arose long before institution and therefore suit and counter claim were barred under Limitation Act was not raised before court below; it required ascertaining date of accrual of cause of action based on materials - The Supreme Court expressed no opinion on this contention as it was raised for the first time before the Supreme Court - Held that since the application under Order VIII Rule 6A was not ex facie barred, the impugned order could not be held incorrect on grounds urged before the court below (Paras 1-2).
Issue of Consideration
Whether an application under Order VIII Rule 6A of the Code of Civil Procedure, 1908 filed after filing of written statement was barred by that provision
Final Decision
Appeal dismissed without any order as to costs. Impugned order upheld; application under Order VIII Rule 6A CPC not ex facie barred. Suits C.S. No. 178/80 and Civil Case 248/82 directed to be disposed of expeditiously, preferably within six months from the date of communication of the order.
Law Points
- Right to file counter claim under Order VIII Rule 6A CPC is referable to date of accrual of cause of action
- Counter claim can be filed after written statement if cause of action arose before or after filing suit and continued up to filing of written statement or extended date
- Question of limitation not decided if not raised before lower court
