Orissa High Court
Pramila Das vs Smt.Jugmaprava Mohanty And Others on 7 September, 2012
Equivalent citations: 2013 AIR CC 269 (ORI), (2013) 123 ALLINDCAS 587 (ORI), AIR 2013 (NOC) (SUPP) 233 (ORI.), (2012) 2 ORISSA LR 859, (2013) 1 CLR 778 (ORI), (2013) 116 CUT LT 242, (2014) 1 CIVILCOURTC 205, (2013) 3 CURCC 630
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA: CUTTACK.
RSA No.136 of 2012
From the judgment and decree dated 31.1.2012 passed by Shri
Satrughana Pujahari, District Judge, Cuttack dismissing RFA No. 179
of 2011 and confirming the order dated 5.9.2011 passed by the Civil
Judge (Senior Division), 1st Court, Cuttack in T.S. No. 531 of 1996-I.
Pramila Das ...... Appellant
- Versus-
Smt.Jugmaprava Mohanty and others ...... Respondents
For Appellant : M/s. Samir Ku. Mishra,
J.Pradhan, P.Prusty and
D.K.Pradhan.
For Respondents : M/s. Shyamananda Mohapatra
(Sr. Adv.)
Prasanna Panda and Tapas
Kumar Praharaj
(Respondent no.1)
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PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of hearing - 8.8.2012 :: Date of judgment - 7.9..2012
B.K. PATEL, J.The second appeal is directed against the judgment and decree dated 31.1.2012 passed by learned District Judge, Cuttack dismissing R.F.A. No.179 of 2011 and confirming the order dated 5.9.2011 passed by learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No.531 of 1996-I rejecting, and refusing to admit, counter-claim of the appellant as being barred by limitation. 2
2. Appellant is defendant no.2 and respondent no.1 is the plaintiff in T.S. No.531 of 1996-I. Originally respondent no.5 as plaintiff instituted the suit for eviction of the appellant from the suit property. On 6.8.1997 the appellant filed written statement disputing the claim of the original plaintiff. Issues were settled on 2.2.2000. On 30.12.2002 registered sale deed in respect of the suit property was executed by original plaintiff in favour of the respondent no.1. On 9.3.2004 in view of application filed by the respondent no.1, respondent no.1 was added as a plaintiff. Thereafter, on 8.9.2004 the appellant filed counter-claim. By order dated 19.4.2005, in response to application filed by respondent no.1, original plaintiff was transposed as proforma defendant no.9. On 25.7.2011 the present plaintiff, i.e., respondent no.1 filed application under Order 7, Rule 11 of the C.P.C. for rejection of the counter-claim on the ground of being time barred under Article 113 of the Limitation Act.
3. On consideration of the rival contentions, order dated 5.9.2011 was passed by the learned trial court rejecting the counter- claim which order was confirmed by the lower appellate court and is under challenge in the present second appeal.
4. The following substantial question of law has been formulated for adjudication in this second appeal:
"Whether counter claim of the appellant is governed by the provision under Article 113 of the Limitation Act?"3
5. In support of the appeal, it was contended by the learned counsel for the appellant that both the courts below failed to appreciate the nature of claim made by the defendant no.2-appellant in the counter-claim and the implications thereon of the provision under Order 8 Rule 6A of the Code of Civil Procedure. It was contended that in the counter-claim defendant no.2 has sought relief of declaration of right, title, interest and confirmation of possession over the suit property. A bare reading of the counter-claim would reveal that counter- claim of title of defendant no.2 is based on plea of adverse possession. It was argued that as the claim of defendant no.2 is based on the plea of adverse possession, the period of limitation of the counter-claim would be governed under Articles 64 and 65, and not under Article 113, of the Limitation Act.
6. In reply it was contended by the learned counsel for the respondent no.1 that relief prayed for in the suit by the original plaintiff as well as the present plaintiff is eviction of the defendant no.2 from the suit premises. The claim is based on title. Therefore, admittedly, defendant no.2 is in possession over the suit property. Present plaintiff being lis pendent purchaser has been allowed to step into the shoes of the original plaintiff initially as one of the plaintiffs and subsequently as the sole plaintiff. Original plaintiff has been relegated to the position of proforma defendant no.9. Defendant no.2 delivered his defence to the claim of title made in the suit by filing written statement way back on 4 6.8.1997. Thereafter, issues were settled on 2.2.2000. However, counter-claim was filed on 8.9.2004 when the suit was posted for recording of evidence of P.W.1 in course of her cross-examination by pleader commissioner. Articles 64 and 65 of the Limitation Act relate to suits for possession. In the present case, in his counter-claim defendant no.2 prays for declaration of title on the basis of possession. Therefore, admittedly, counter-claim is not a prayer for relief of possession. In such circumstances, both the courts below rightly held that the period of limitation for the appellant's counter-claim is governed under Article 113 of the Limitation Act.
7. Learned counsel for the respondent no.1 has drawn attention of the court to the observation of the Hon'ble Supreme Court at paragraph 33 of the decision in Gayathri Womens Welfare Association -vs- Gowramma & Anr.: 2011 (I) OLR (SC) 875, on which lower appellate court has placed reliance, to the effect that generally speaking the counter-claim not contained in the original written statement may be refused to be taken on record, especially if issues have already been framed.
8. In order to appreciate rival contentions it will be profitable to refer to the provision under Order 8 Rule 6A of the C.P.C. for filing of counter-claim by defendant. It reads:
"(1) A defendant in a suit may, in addition to his right of pleading of set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any 5 right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not;
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. "
9. It is now well settled that counter-claim in a suit can be filed by defendant in respect of any right or claim in respect of a cause of action which accrues to the defendant against a plaintiff either before or after filing of the suit but before defendant has delivered his defence or before time stipulated for delivery of defence expires. In this connection, decision of this Court in Mangulu Pirai -vs-Prafulla Kumar Singh & others: AIR 1989 Orissa 50 may be referred to. Counter-claim is required to be treated as plaint in a suit and is governed by rules applicable to plaint including rules of limitation applicable to such suit. Under section 3(2)(b)(ii) of the Limitation Act, counter-claim is to be treated as a separate suit deemed to have been instituted on the date 6 such counter-claim is made in court. Therefore, counter-claim has to be made in court before expiry of period of limitation prescribed for a suit in which relief of the nature similar to the counter-claim is made. In the decision of Satyananda Sahoo -vs- Ratikanta Panda : AIR 1997 Orissa 67, it has been held by this Court that trial court should keep in mind that the cause of action is relatable to the period of limitation. It is well settled in law that limitation need not be set up as a defence under section 3(1) of the Limitation Act. It is the duty of the court to find so. Duty is cast on the court to entertain a plaint to look into the averments in the plaint in proper perspective and consider the plaint as a whole to scan the essence of the cause of action and arrive at a conclusion whether the cause of action as indicated and understood as a bundle of facts giving rise to a grievance of the plaintiff saves the limitation or not. Court may examine the point before admitting the plaint. It is also pertinent to note that in the presence case, in the impugned judgment of the lower appellate court reference has been made to the decision of the Hon'ble Supreme Court in Mahendra Kumar and another vs. State of Madhya Pradesh and others: (1987) 3 SCC 265 in which, under the facts and circumstances of the case, it was held that the counter-claim having been filed within three years from the date of accrual of the right to sue, is within the period of limitation as provided under Section 113 of the Limitation Act. 7
10. Admittedly, in the present case, plaintiff's suit is a suit for eviction based on claim of title whereas counter-claim of defendant no.2 is for declaration of title on the basis of plea of adverse possession. The very basis of the counter-claim being plea of adverse possession, defendant no.2 admits to be in possession of the suit property. Therefore, counter-claim is not in the nature of suit for possession. Both the Articles 64 and 65 prescribe for period of limitation for suits for possession of immovable property or any interest thereon. Therefore, there is no basis for the appellant to urge that the period of limitation for the counter-claim in the present case is governed under Articles 64 and 65 of the Limitation Act. Both the courts below rightly held that the counter-claim of defendant no.2 is barred under Article 113 of the Limitation Act.
11. There is no merit in the second appeal. Accordingly, the RSA is dismissed. No cost.
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B.K. Patel, J.
Orissa High Court, Cuttack, Dated the 7.9.2012/Palai & Jhankar