SANKAR DASTIDAR Vs. BANJULA DASTIDAR

JUDGEMENT

(1.) The scope: A very interesting point on the question of maintainability of the suit, emanating from a counter-claim pleaded in the written statement and out of an order dated 6"1 September, 1994 passed by the Division Bench of this Court in CO No. 1637 of 1993, was dealt with by the learned Court below conceivably in a cryptic manner without any reasoning to support the ultimate finding on the face of the questions raised. The questions:

(2.) The questions that are to be decided in this case principally are twofold. First whether the suit was barred by limitation and second whether the suit was barred by res judicata. Apart from the maintainability of the suit, the merit was also challenged. My learned brother Sinha, J. has dealt with the merit with which I do concur. 1. So far as the question of maintainability is concerned, the point of limitation has two aspects; one that the counter-claim was filed after the expiry of limitation and that the suit was registered on 14th of March, 1995 long after the accrual of the cause of action, which, according to the defendant/appellant herein, accrued on 16th of March, 1987. The other aspect is that it was based on a counter-claim, which could not have been filed on account of the expiry of the time stipulated therefor or in other words the counter-claim in the circumstances of the case could not be maintained. Reajudicata :

(3.) We may first answer the question of res judicata, which, however, Mr. Sahu, in his usual fairness, though argued but did not lay much stress on it. Inasmuch as the dismissal of the Money Suit No. 20 of 1989 would not affect the counter-claim, if maintainable, though the question between the parties were involved in the said suit. Inasmuch as a counter-claim is maintainable even though the suit might have been dismissed. Even if the Money Suit No. 20 of 1989 was dismissed, by reasom of Order 8 Rule 6D of the Code of Civil Procedure, the counter-claim can nevertheless be proceeded with. Therefore, the question of res judicata would not stand in the way of the counter-claim treated as a fresh suit being Money Suit No. 5 of 1995 so far as the facts and circumstances are concerned. Limitation: