JUDGMENT
Hemant Gupta, J.
1. The defendants are aggrieved against the order passed by the learned trial Court whereby application of the defendants for amendment of the written statement to claim counter claim has been declined.
2. The plaintiff-respondent is the father of the defendants. The respondent filed a suit for recovery of claim mesne profits on account of occupation of the premises by the defendants. Earlier, the respondent had filed a suit for mandatory injunction which was decreed and after the possession was handed over by the plaintiff, the present suit for recovery of compensation has been filed.
3. The defendants filed their written statement but, subsequently, sought amendment to the written statement so as to raise a counter claim to recover a sum of Rs. 2,75,000/-on account of improvement in the construction of the house. The said amendment has been declined on the ground that the counter claim is barred by limitation as the amount which is sought to be recovered was spent in the year 1989-90.
4. The learned counsel for the petitioners has vehemently argued that the question of limitation is not required to be gone in respect of the filing of the counter claim. He has relied upon the judgment of this Court reported as Vinod Kumar v. Jagmohan and Anr., 2003(1) R.C.R. (Civil) 140.
5. On the other hand, learned counsel for the plaintiff-respondent has relied upon the judgment reported as Kohinoor Hosiery Mills and Anr. v. New Bank of India and Ors., (1993-2)104 P.L.R. 617, wherein it has been held that the counter claim can be filed even after filing of the written statement provided it is within the period of limitation. The reliance has also been placed upon the judgment reported as Oriental Ceramic Products Pvt. Ltd. v. Calcutta Municipal Corporation, A.I.R. 2000 Cal. 17 wherein it has been held that there is time limit for filing of counter claim. The time limit is the same as prescribed in relation to a particular claim or cause of action.
6. After hearing learned counsel for the parties and going through the case law cited by the counsel for the parties, I am of the opinion that the amendment in the written statement to seek counter claim is clearly beyond the period of limitation. In terms of Sub-rule 2 of Rule 8(6)(a), the counter claim has the same effect as a cross-suit so as to enable the Courts to pronounce the final judgment in the same suit both on the original claim and on counter claim. The liberty to file counter-claim is given to the defendant in addition to his right of pleading a set off under Rule 6 so that all the question between the parties are decided in one and the same proceedings.
7. In terms of Section 3(2)(b) of the Limitation Act, the counter claim is to be treated as a separate suit on the date on which the counter claim is made in Court. Section 3(2)(b) of the Limitation Act reads as under:-
“3. Bar of limitation.- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2) For the purpose of this Act-
(a)……
(b) any claim by way of a set off or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted-
(i) in the case of a set-off on the same date as the suit in which the set-off is pleaded;
(ii) in the case of counter claim on the date on which the counter claim is made in court;”
8. The counter claim is nothing but a separate suit which is appended to the written statement to facilitate the trial of all the issues between the parties. Therefore, it is not correct to state that there is no limitation for filing a counter-claim. Similarly, for raising the counter-claim, the limitation is one as provided under the Limitation Act. This Court has held that the defendants can file counter claim even after filing of the written statement provided such counter claim is within the period of limitation. Such is the view taken by the Calcutta High Court in M/s Oriental Ceramic Products Pvt. (supra).
9. In Vinod Kumar’s case (supra) this Court has found on fact that the limitation for claiming the possession is twelve years and there is nothing on record to show that the period of twelve years has expired, However, it may be stated that the attention of the Court was not drawn to the earlier judgment referred to by this Court as well as to the Statutory provisions contained in Section 3 of the Limitation Act, according to which, the period of limitation for filing of counter claim is one which is provided under the Limitation Act.
10. Since the petitioner has claimed counter claim in respect of amount spent on the construction of the house in the year 1989-90, the said claim is clearly barred by limitation so as to be included by way of counter claim.
11. Consequently, I do not find that the order passed by the learned trial Court suffers from any irregularity or illegality warranting interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India.
Dismissed.