SMT. SHANTI RANI DAS DEWANJEEversusDINESH CHANDRA DAY (DEAD) BY LRS.

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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.
                                                                                      E
         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.

         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
    the Limitation Act. It has been sought to be contended by the learned
E   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 Munsiff. Since both
                      S.R.D. DEWANJEE. v. D.C. DAY                         179
the suits are pending for a long time, it is only desirable that ooth the suits   A
should be disposed of as early as practicable preferably within a period of
six months from the date of communication of order. We reasonably expect
that the Trial Court would be alive to the urgency of the disposal of the suits
expeditiously and will take all necessary steps in that regard.

RP.                                                        Appeal dismissed.      B