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Shanti Rani Das Dewanjee (Smt) v. Dinesh Chandra Day (Dead) By Lrs.
Factual and Procedural Background
The appeal concerns whether an application for a counter-claim filed under Order VIII Rule 6-A of the Code of Civil Procedure (CPC) on 22-06-1985 by the defendant-respondents in Civil Case No. 248 of 1982, pending before the learned Munsiff at Serampore, was barred under that provision. The underlying suit (Civil Case No. 248 of 1982) was instituted on 15-07-1982. The impugned order held that such an application is not barred merely because it was filed after the written statement, provided the cause of action for the counter-claim had arisen before or after institution of the suit and continued up to the filing of the written statement. The appellant challenged this view, contending that once a written statement is filed, a counter-claim under Order VIII Rule 6-A is ex facie barred. The court also noted that CS No. 178 of 1980 and Civil Case No. 248 of 1982 have been directed to be heard analogously before the trial court.
Legal Issues Presented
- Whether, under Order VIII Rule 6-A CPC, a counter-claim application filed after the written statement is maintainable if the cause of action arose before or after the suit and continued up to the filing of the written statement (or its extended date).
- Whether the suit and the counter-claim were ex facie barred by limitation under the Limitation Act (an issue raised for the first time in appeal and not decided by the court as it had not been raised below).
Arguments of the Parties
Appellant's Arguments
- Once the written statement is filed, an application for counter-claim under Order VIII Rule 6-A CPC is ex facie barred.
- The cause of action had arisen long before the institution of Civil Case No. 248 of 1982; therefore, both the suit and the counter-claim are barred under the Limitation Act. (The court recorded that this contention was not raised before the court below.)
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mahendra Kumar v. State of M.P., (1987) 3 SCC 265 | The right to file a counter-claim under Order VIII Rule 6-A CPC is referable to the date of accrual of the cause of action. If the cause of action arose before or after the suit and continued up to the date of filing the written statement or its extended date, a counter-claim can be filed even after filing the written statement. | The court relied on this principle to uphold the maintainability of the defendants’ counter-claim application filed on 22-06-1985, concluding it was not barred merely because it was filed after the written statement. |
Court's Reasoning and Analysis
The court affirmed the impugned order by applying the principle settled in Mahendra Kumar v. State of M.P. It reasoned that Order VIII Rule 6-A CPC ties the maintainability of a counter-claim to the accrual of the cause of action and its continuity up to the filing of the written statement (or an extended date), rather than to the mere timing of the counter-claim application vis-à-vis the written statement. Consequently, a counter-claim may be filed even after the written statement if the cause of action meets that standard.
On the dates presented—suit instituted on 15-07-1982 and the counter-claim application filed on 22-06-1985—the court held it could not be said that the counter-claim was ex facie barred by the Limitation Act. The appellant’s further contention that both the suit and the counter-claim were time-barred was not entertained because it had not been raised before the court below; the court expressly declined to decide that question, noting it should be determined at trial upon ascertaining the actual date of accrual of the cause of action based on the record.
Given that the application under Order VIII Rule 6-A was not ex facie barred and the governing legal principle permits filing a counter-claim after the written statement under the stated conditions, the court found no reason to interfere with the impugned order.
Holding and Implications
DISMISSED — The appeal fails and is dismissed without any order as to costs.
Implications: The impugned order stands, allowing the defendant-respondents’ counter-claim application under Order VIII Rule 6-A CPC to proceed. The question of limitation was left open for the trial court to decide based on evidence concerning the accrual of the cause of action. The court noted that CS No. 178 of 1980 and Civil Case No. 248 of 1982 are to be heard analogously and should be disposed of expeditiously, preferably within six months from the date of communication of this order. No new legal precedent was created; the decision applies the existing principle articulated in Mahendra Kumar v. State of M.P.
Order
1. 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 22-6-1985 by the defendant-respondents in Civil Case No. 248 of 1982 pending in the Court of the learned Munsiff at Serampore was barred by the provision of Order VIII Rule 6-A of the Code of Civil Procedure. By the impugned order, it has been held that such application was not barred under Order VIII Rule 6-A of the Code of Civil Procedure because 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 6-A is ex facie barred.
2. In our view, the impugned decision does not warrant interference. Such question was specifically raised before this Court in Mahendra Kumar v. State of M.P (1987) 3 SCC 265 It has been held by this Court that right to file a counter-claim under Order VIII Rule 6-A 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 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 said Civil Case No. 248 of 1982, in which the application under Order VIII Rule 6-A has been filed by the defendant-respondents was instituted on 15-7-1982 and the application under Order VIII Rule 6-A was presented on 22-6-1985. It cannot be held that the cause of action for the suit or counter-claim was ex facie barred by limitation under the Limitation Act. It has been sought to be contended by the learned counsel 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 of 1982 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 6-A 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.
3. It appears that CS No. 178 of 1980 and Civil Case No. 248 of 1982 have been directed to be heard analogously before the Court of the learned Munsiff. Since both the suits have been 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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