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PETITIONER: SMT. SHANTI RANI DAS DEWANJEE

       Vs.

RESPONDENT: DINESH CHANDRA (DEAD) BY LRS

DATE OF JUDGMENT:       18/09/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The short  question that  arises for  decision in  this appeal is  whether the  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 6A of the Code of  Civil  procedure  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 is filed. such application for counter  claim under  Order VIII  Rule 6A  is  ex  facie barred.      In our  view, the  impugned decision  does not  warrant interference. Such  question was  specifically raised before this Court  in Mahendra  Kumar and  Ors vs.  state of Madhya Pradesh and  Ors. (1987  (3) SCC  265). It  has been held by this Court  that right  to file  a counter claim under Order VIII Rule  6A 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 even after filing the written  statement. The  said Civil  Case No. 248/82, in which the  application under  Order VIII  Rule 6A  has  been filed by the defendant respondents was has been filed by the defendant respondents  was instituted  on  15.7.82  and  the application under  Order  VIII  Rule  6A  was  presented  on 22.685. It  cannot be  held that the cause of action for the suit or  counter claim  was ex  facie barred  by  limitation under Limitation  act. It was been sought to be contended by the learned  councel 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,

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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 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 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 to be heard analogously before the Court of the learned Munsiff. Since both the suits are pending for a long time, it is only desirable that both the suits should be disposed  of as  early as practicable preferably within a period of  six months  from the date of communication of the 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.