GWALIOR RAYONS SILK MFG CO LTD Vs. RAMADAS

JUDGEMENT

(1.) AN order of the trial court permitting the first defendant to amend his written statement in order to raise a counter-claim is challenged by the plaintiff in this revision.

(2.) THE suit for money was filed in 1976. First defendant filed his written statement on 31-1-1977 and additional written statement on 28-7-1977. Replication was filed on 31-8-1977. After settlement of issues the case was pending trial for a long time. Plaintiff closed his evidence and the examination of the first defendant was about to be completed.

(3.) IF the cause of action and the claim in a plaint presented before court if barred by the law of limitation the court cannot proceed with the suit and the court is not bound to issue process. I have already stated that a counterclaim is just like a plaint in a cross-suit and it must be deemed to have been instituted on the date on which the counter-claim is made in court. That means if the cause of action or the claim is barred by limitation on the date en which the counter-claim is made in court the court cannot entertain the same. When written statement already filed is allowed to be amended by adding a counter-claim the amendment also takes effect as on the date of the original written statement. That means if the claim was not barred on the date of the original written statement but barred on the date when the amendment was sought for or allowed, the defendant is thereby getting a successful opportunity of overcoming the plea of limitation and the plaintiff is put to the prejudicial position of being negatived of the right of that plea. In such a situation, I cannot understand how the trial court said that the plaintiff will not be prejudiced. The trial court has not provided that limitation will be considered as on the date on which the counter-claim was sought to be inserted by amendment even if such a prevision will be legal.