PRAMILA DAS Vs. JUGMAPRAVA MOHANTY

JUDGEMENT

(1.) The second appeal is directed against the Judgment & decree dated 31.1.2012 passed by Learned District Judge, Cuttack dismissing R.F.A. No. 179 of 2011 & confirming the Order Dated 5.9.2011 passed by Learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No. 531 of 1996-1 rejecting, & refusing to admit, counter-claim of the Appellant as being barred by limitation. Appellant is Defendant No. 2 & Respondent No. 1 is the Plaintiff in T.S. No. 531 of 1996-1. Originally Respondent No. 5 as Plaintiff instituted the suit for eviction of the Appellant from the suit property. On 6.8.1997 the Appellant filed written statement disputing the claim of the original Plaintiff. Issues were settled on 2.2.2000. On 30.12.2002 registered sale deed in respect of the suit property was executed by original Plaintiff in favour of the Respondent No. 1. On 9.3.2004 in view of application filed by the Respondent No. 1 Respondent No. 1 was added as a Plaintiff. Thereafter, on 8.9.2004 the Appellant filed counter-claim. By Order Dated 19.4.2005, in response to application filed by Respondent No. 1, original Plaintiff was transposed as proforma Defendant No. 9. On 25.7.2011 the present Plaintiff, i.e. Respondent No. 1 filed application under Order 7, Rule 11 of the C.P.C. for rejection of the counter-claim on the ground of being, time barred under Article 113 of the Limitation Act.

(2.) On consideration of the rival contentions, Order Dated 5.9.2011 was passed by the Learned Trial Court rejecting the counterclaim which order was confirmed by the lower Appellate Court & is under challenge in the present second appeal.

(3.) The following substantial question of law has been formulated for adjudication in this second appeal;