SAMEER Vs. VINOD KUMAR AND ANOTHER

JUDGEMENT

(1.) Counsel for the petitioner has submitted that in the instant case, the issues have been framed; evidence has been led; and after closing the evidence, the case is now fixed for 3.9.2012. Learned counsel has also placed reliance on a judgment delivered in the case of Mahender Kumar & another v. State of M.P. & others, 1987 AIR(SC) 1395 wherein it was observed that the counter claim could not be rejected merely on the ground of limitation or that it was filed after filing the written statement. The observations given by the Apex Court read as under :-

(2.) While following the aforesaid judgment, this Court in case Nini Kumar Jain v. Neena Devi & others, 2006 4 RCR(Civ) 770 observed that the question as to when the cause of action arose would be a subject matter to be decided on merits by the Court after the parties have led their evidence. The finding of the trial Court and no counter-claim could be filed after the parties had led their evidence or that the suit was barred by limitation, cannot be sustained in view of the specific averments about the cause of action having been made in the counter-claim. However, issue of limitation could be decided, while deciding the suit on merits.

(3.) Faced with the situation, counsel for the petitioner has stated that through the counter-claim could not be allowed by way of amendment of the written statement yet the Court could not refuse to entertain the counter-claim in this case particularly when the evidence has not so far commenced. In this view of the matter, this revision petition is disposed of with direction to the Trial Court to consider the case of the petitioner if the counterclaim is filed by the petitioner independently of the amendment.