PARMENDRA NATH SINGH Vs. ANILA JAIN

JUDGEMENT

(1.) PURSUANT to notice issued by this Court, the plaintiff/opposite party no. 1 has appeared. Heard Shri J.S. Arora for the principal defendant/petitioner and Shri Keshav Srivastava, learned Senior Counsel appearing on behalf of the plaintiff/opposite party no. 1.

(2.) THE present civil revision application is directed against the ORDER :dated 11.8.2005 passed by the learned Sub -Judge VIII, Patna in Title Suit No. 324 of 2000 wherein the defendant/petitioner's application to amend his written statement, in reducing a claim in the nature of a counter claim, has been rejected primarily on two grounds. Firstly, the counter claim not having been raised in the written statement itself could not be permitted to be raised thereafter in view of ORDER :8, Rule 6A of the Code of Civil Procedure. Secondly, it has been found that the counter claim by way of amendment was being sought to be raised after about four years of filing of the written statement and, as such, in view of the trial Court, it was barred and, therefore, no useful purpose would be served by allowing the amendment.

(3.) COMING to the second ground, Shri Srivastava, learned Senior Counsel appearing on behalf of the plaintiff/opposite party, with reference to the aforesaid two decisions of the Apex Court, has tried to canvass that the JUDGMENT :s laid down that the counter claim is to be based on a right to sue which should occur or be occurring at the time when written statement was filed. Any subsequent right to sue occurring would not give cause to file a counter claim. A reference to the two cases aforesaid would show that the Apex Court has held that while counter claim would be raised even after filing of the written statement where the counter claim is for money, the period of limitation would be three years in terms of Article 113 of Limitation Act. In both the cases, it was found that the claims raising counter claims was filed by the defendant within three years of the written statement and, as such, they were held to be within time. The said decisions go no further. I am afraid it does not follow from the said decisions that in all matters as a matter of law, the application for raising counter claim has to be filed within three years of filing of the written statement. On the other hand, Shri J.S. Arora, learned counsel appearing for the defendant/petitioner submits firstly that he did have a subsisting right to sue which was a continuing right to sue for having been illegally deprived of possession of his premises. There being a continuing cause of action, the claim was within period of limitation. Secondly, it was submitted that by allowing the amendment raising claim of counter claims, no rights are being decided, no right is being accepted. The Court is only putting the parties to notice of issues to be decided in duly constituted suit. Lastly, it was submitted that whether the cause of action to sue is barred by provisions of the Limitation Act is a mixed question of fact and law which is to be decided in course of trial and not at this stage.