- (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 :- 15. The next point that remains to be considered is whether Rule 6A(1) of Order 8, Civil Procedure Code bars the filing of a counterclaim after the filing of a written statement. This point need not detain us long, for Rule 6A (1) does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counterclaim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1), Civil Procedure Code. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable. Under Article 113, Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit under Section 3(2)(b), Limitation Act has been filed by the appellants within three years from the date of accrual to them of the right to sue. The teamed [SIC] District Judge and the High Court were wrong in dismissing the counterclaim.
(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.;