The High Court of Calcutta, while allowing a petition filed against an order dated 7th December 2020 passed by the Learned Civil Judge vide which an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement for setting up a counter-claim was allowed, held that the right to file a counter-claim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order 8 Rule 6A.
Brief Facts:
The petitioner had filed a suit for a declaration that he is a tenant under the proforma defendant no.2 and for a declaration that defendant no.1 does not have any title in respect of the suit property. The petitioner also prayed for an order of permanent injunction restraining the defendants from interfering with the peaceful possession of the petitioner in the suit property. The opposite party no.1 is contesting the said suit by filing a written statement. Thereafter, the said opposite party filed an application under Order 6 Rule 17 of the Code praying for amendment of the written statement for setting up a counterclaim.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the counter-claim, which the defendant seeks to introduce by way of amendment is barred by limitation and therefore, the learned Trial Judge ought not to have allowed the application for amendment.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the learned Trial Judge allowed the application for amendment upon holding that the outer limit for filing counter-claim is the stage of framing of issues.
Observations of the court:
The court noted that the written statement was filed on 1st April 2021. The cause of action for the counter-claim arose on 25th February 2022 i.e. after filing of the written statement.
The Court observed that the cause of action of the counter-claim has to arise before the defendant delivers his defense or before the time limit limited for delivering his defense expires. In the case on hand, the cause of action for the counter-claim as pleaded in the amendment application was after the filing of the written statement. The Court cited the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra Agnihotri & Ors. (2020) 2 SCC 394, where it was held that the time limit for filing the counter-claim is not explicitly provided by the legislature rather only limitation as to the accrual of the cause of action is provided. It was further observed that the right to file a counter-claim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order 8 Rule 6A.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the learned Trial Judge failed to appreciate that the restriction imposed under Order 8 Rule 6A of the Code with respect to accrual of cause of action stands attracted in the instant case.
Case Title: Dilip Kumar Ray v. Srabanti Sen & Anr.
Coram: Hon’ble Mr. Justice Hiranmay Bhattacharyya
Case No.: C.O. 3554 of 2023
Advocate for the Petitioner: Mr. Ankit Agarwal
Advocate for the Respondent: Mr. Dhananjay Banerjee and Mr. Somnath Roy
Read Judgment @LatestLaws.com
Picture Source :
