SMT. SHANTI RANI DAS DEWANJEE versus DINESH CHANDRA DAY (DEAD) BY LRS.

Citation: [1997] SUPP. 4 S.C.R. 177 · Decided: 18-09-1997 · Supreme Court of India · Bench: G.N. RAY, G.B. PATTANAIK · Disposal: Dismissed

Judgment (excerpt)

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SMT. SnANTI RANI DAS DEWANJEE 
A 
v. 
DINESH CHANDRA DAY (DEAD) BY LRS. 
SEPTEMBER 18, 1997 
B 
[G.N. RAY AND G.B. PATTANAIK, JJ.] 
Code of Civil Procedure, 1908 : 
Order V!JJ, Rule 6-A-Counter claim-Plea that after written statement C 
had been filed, jiling of counter claim was barred-Rejected by civil Court 
holding that even after filing the written statement such an application can 
be presented provided the cause of action for filing the counter claim had 
arisen before or after the institution of the suit and such cause of action had 
continued till the filing of the written statement-Held, the application under D 
Order VJJJ, Rule 6A is not ex-facie barred-There is no reason to interfere 
with the impugned order. 
Mahendra Kumar and Ors. v. State of Madhya Pradesh and Ors., (1987) 
3 sec 265, relied on. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2766of1987. 
From the Judgment and Order dated 20.5.87 of the Calcutta High Court 
in C.O. No. 896 of 1986. 
E 
S.K. Bhattacharya, Pradeep Kumar and S.K. Bandhupadhya for the F 
Appellant. 
Shankar Ghosh, G.S. Chatterjee and Raja Chatterjee for the Respondents. 
The following Order -of the Court was delivered : 
The short question that arises for decision in this appeal is whether the G 
application filed under Order VIII Rule 6 A of the Code of Civil Procedure on 
22.6.85 by the defendant-respondents in Civil Case No. 248/82 pending in the 
Court of learned Munsiff at Serampore was barred by the provision of Order 
VIII, Rule 6A of the Code of Civil Procedure. By the impugned order, it has 
been held that such application was not barred under Order VIII Rule 6 A H 
177 
178 
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R. 
A of the Code of Civil Procedure because even after filing the written statement, 
such an application can be presented provided the cause of action for filing 
the counter claim had arisen before or after the institution of the said suit and 
such cause of action had continued till the filing of the written statement. It 
was sought to be contended by the appellant that once the written statement 
B is filed, such application for counter-claim under Order VIII Rule 6 A is ex facie 
barred. 
Jn our view, the impugned decision does not warrant interference. Such 
question was specifically raised before this Court in Mahendra Kumar and 
Ors. v. State of Madhya Pradesh and Ors., [1987] 3 SCC 265. It has been held 
C by this Court that right to file a counter claim under Order VIII Rule 6 A of 
the Code of Civil Procedure is referable to the date of accrual of the cause 
of action. If the cause of action had arisen before or after the filing of the suit, 
and such cause of action continued upto the date of filing written statement 
or extended date of filing written statement, such counter claim can be filed 
D even after filing the written statement. The said Civil Case No. 248/82, in 
which the application under Order VIII Rule 6 A has been filed by the 
defendant respondents was instituted on 15.7.82 and the application under 
Order VIII Rule 6A was presented on 22.6.85. It cannot be held that the cause 
of action for the suit or counter claim was ex facie barred by limitation under 
E 
the Limitation Act. It has been sought to be contended by the learned 
counsel for the appellant that in the instant case, the cause of action had 
arisen long before the institution of the said Civil Case No. 248/82 and, 
therefore, the suit and counter claim were barred under the Limitation Act. 
Such question was not raised before the Court below and, therefore, had not 
been gone into. It is, therefore, not necessary for this Court to decide the 
F same because the question of limitation regarding the suit if raised will be 
decided after ascertaining the date of accrual of the cause of action on the 
basis of relevant materials to be placed on record. We are therefore, not 
expressing any opinion on the said contention sought to be raised by the 
learned counsel for the appellant, for the first time before this Court. As the 
G application under Order VIII Rule 6A is not ex facie barred the impugned order 
cannot be held to be incorrect on the grounds urged before the Court below. 
We therefore find no reason to interfere with the impugned order. This appeal, 
therefore, fails and is dismissed without any order as to costs. 
It appears that C.S. No. 178/80 and Civil Case 248/82 have been directed 
H to be heard analogously before the Court of the learned Muns

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