PARTHA PRATIM ROY v. SMT. ROMI ARORA

defendant from the suit premises along with damages. The said suit was filed on August 16, 2021 and the present Opposite Party/defendant entered appearance on January 27, 2022 and on March 8, 2022 was fixed for filing written statement with a direction upon the plaintiff to serve copy of the documents to the defendant on said date.

#3. On June 9, 2022, the defendant made a prayer to extend the time for submission of written statement on the ground of non-service of the copy of the annexure to the plaint was refused on the ground that the statutory period for filing the written statement was over with a direction to show cause as to why the suit should not proceed ex-parte and the date was fixed on July 28, 2022 for showing cause by the defendant/petitioner. On the said date the defendant/ petitioner filed written statement along with counterclaim and petition for acceptance of the written statement with counter claim and also showing cause for the delay. On February 10, 23, the defendant filed a petition under Section 151 of the Code of Civil Procedure, praying for filing the deficit, Court fee on the counter claim and after hearing the show cause petition, the written statement was accepted subject to payment of cost of ₹1000 and directed the defendant/petitioner to file the deficit court fee on the counterclaim.

#4. On March 23, 2023 the defendant filed the deficit court fee of ₹4280 on counterclaim and the date was fixed on June 13, 23 for payment of cost to the plaintiff which was paid on the very next day on June 13, 2023. On June 13,, 2023 an application was filed by the Opposite Party/plaintiff for rejection of the counter claim principally on the ground on merit of the counter claim of the defendant. The learned Trial court allowed such application of the plaintiff on 8 February 2024 and rejected the counter claim on the ground that counter claim was not accepted on February 10, 2023 itself considering that the counterclaim has been filed along with the written statement as mandated under order 8 Rule 6A and therefore the counter claim is liable to be dismissed.

#5. The Learned Advocate appearing on behalf of the petitioner submits that from the tenor of the order, it can be gathered that the Learned Court relied upon the provision of Order 8 Rule 6 A of the Code of Civil Procedure where it has been provided that the defendant should filed the counter claim before the expiry of the stipulated time for delivering his defence. Therefore, the learned trial court was of the view that the time limited for filing the counterclaim is terminus with the period of filing the written statement, but question arises when the learned court accepted the written statement and directed the petitioner to pay the deficit court fees how can come to an observation that the period to file the counter claim has expired.

#6. The learned Advocate has relied upon a decision of the Hon’ble Supreme Court in Ashok Kumar, Kalra vs Wing CDR Surendra Agnihotri and others reported in1 where the Hon’ble Three Judges Bench of the Supreme Court held that the outer limit for filing the counter claim should be till the issues are framed. He further argued that the Hon’ble Supreme Court further held that the procedural rule should not come in the way to defeat Justice. He specifically relied on the paragraph 42, 43 and 50 of the said judgement. Furthermore, Article 59 the limitation Act provides the period of three years 1 (2020) 2 SCC 394 to cancel or set aside any deed or instrument from when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract is rescinded first becomes known to him.

#7. The learned Advocate further relied on a decision reported in2 State of Punjab and others vs Gurdeep Singh, in this regard where Hon’ble Supreme Court had looked into Article 113 of the limitation Act which provides for right to sue. It is their specific case that the defendant had no knowledge about the transfer deeds which were mentioned in the plaint till the suit was filed and only after receiving the Writ of summons on January 27, 2022 the fact was known to defendant and then, the instant counter claim had been filed on July 28, 2022. Therefore, clearly the claims of the defendant for rescinding deeds are well within the ambit of Article 59 of the Limitation Act.

#8. That apart, the claim of adverse possession is based on Section 27 of the limitation act, where because of efflux of time the right to property of the original owner may be extinguished and the burden of proof rest upon the claimant of such adverse possession .Therefore the claim cannot be said to be barred by limitation and also has to be decided in trial. Reliance is also placed to the judgement reported in3 Thankamma George versus Lilly Thomas and another where Hon’ble Supreme Court had explained the ambit and scope of Article 58 and 59 of the Limitation Act.

#9. The case of the Opposite Party on the other hand is that on February 8, 2024, the petition dated June 13,, 2023 is that the petitioner did not challenge the initial order of February 10,23 whereby the Learned Trial