ANANTA GAS SUPPILERS Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) RESPONDENT filed the suit against the revision petitioners for recovery of money in which they filed their written statement on 01-07-1997 contesting the claim. After trial of the suit was taken up, revision petitioner filed a petition seeking permission of the Court to file additional written statement making a conter-claim, which was allowed by the trial Court by its order dated 13-11-03. Questioning the said order respondent preferred CRP No. 6251 of 2003 to this Court. By the order dated 10-12-2004, a learned Single Judge of this Court, while setting aside the order of the trial Court, remitted the case to the trial Court for fresh disposal on the question of limitation and pecuniary jurisdiction for considering the maintainability of the counter-claim. After remand the trial Court dismissed the petition by the order under revision on the ground of limitation, without going into the question of pecuniary jurisdiction. Hence, this revision.

(2.) THE main contention of Sri Koka Raghava Rao, learned senior counsel appearing for the revision petitioners is that since the order of remand directed the trial Court to give a finding on the pecuniary jurisdiction to entertain the claim made in the counter-claim and since the trial Court failed to give such a finding the petition may again be remanded to the trial Court to give specific finding on the point of jurisdiction. His next contention is that the trial court was in error in holding that the counter-claim is barred by time by overlooking the fact that limitation is a mixed question of law and fact and so it cannot be decided without evidence being adduced and strongly relied on Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra Day (Died) by LRs., 1997(4) RCR(Civil) 222 : AIR 1997 SC 3985, Mahendra Kumar and another v. State of Madhya Pradesh and others, AIR 1987 SC 1395, Indian Bank, Warangal Branch v. Srinivasa Timber Depot, Warangal and others, 1992(1) ALT 535 and Jagmohan Chawla and another v. Dera Radha Swami Satsang and others, 1996(2) RRR 623 : (1996)4 SCC 699 in support of his contention.

(3.) AS rightly contended by Sri Raghava Rao, a counter-claim cannot be rejected merely on the ground that the cause of action therefor is different from the cause of action on which the plaintiff made the claim, as it is well known that a counter-claim can also be made on a different cause of action which accrued to the defendant after the institution of the suit by the plaintiff subject to the proviso that such cause of action must have accrued before the time fixed for filing of the written statement expires. See Mahendra Kumar case (2 supra) and Jagmohan Chawla (4 supra) relied on by Sri Koka Raghava Rao, learned senior counsel. Rule 6-A of Order 8 CPC also clearly lays down that the counter-claim should be in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit, "but before the defendant has delivered his defence or before the time limit has expired". (emphasis applied)