Rule 11(d) of the Civil Procedure Code (CPC) stipulates that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. This was reiterated by the Hon’ble Justice Sabyasachi Bhattacharyya in the case of Nirmalendu Mishra alias Jyotin Mishra and others Vs. Sri Swapan Raj and others [C.O. No.1115 of 2021] on the 2nd of August 2021 before the Hon’ble High Court of Calcutta [appellate side].
The brief facts of the case are, the dispute arises out of a suit for cancellation of a Deed of Exchange dated November 10, 1983 and for recovery of possession in respect of ‘ka’ schedule property against the predecessor of defendant nos. 1 to 8. The opposite party nos. 1 and 2 were arrayed as proforma defendant nos. 25 and 26 in the suit, bearing Title Suit No. 22 of 2003. By the first impugned order, dated June 16, 2020, the trial court accepted the belated written statement filed by the defendant nos. 25 and 26/opposite party nos. 1 and 2 on contest with costs of Rs.9,000/. By the subsequent order dated March 9, 2021, the two applications of the revisionist petitioners, both under Order VIII Rule 6-C of the Code of Civil Procedure, were rejected on contest and the written statement, along with counter-claim, dated September 6, 2019 of opposite party nos. 1 and 2 was accepted. Aggrieved by this, the present plaint is filed.
The counsel for the petitioner submits that the counter-claim was ex facie barred by limitation since the same was filed after about 17 years from the date impugned in the counter-claim. The show-cause of the opposite party nos. 1 and 2 as well as their written statement were accepted after about 17 years’ delay. It is argued that the information of the suit, received by the advocate for the opposite party nos. 1 and 2, was allegedly received after an order was passed by this court, rejecting the plaintiff’s application for amendment of plaint under Order VI Rule 17 of the Code, seeking to introduce a similar relief as sought in the counter-claim. Hence, the opposite party nos. 1 and 2, being proforma defendants in the suit, were set up by the plaintiffs to defeat the order of the High Court by introducing a time-barred counter-claim. The counsel for the respondents submits that at the stage of accepting the written statement and entertaining the counter-claim, the court cannot go into the merits of the counter-claim.
The learned judge heard the submissions of both the parties and observed that he provisions of Order VII Rule 11 of the Code, which are applicable to amendment of plaints, are also applicable to counter-claims since he counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. n the present case, the counter-claim made against the plaintiffs, challenging the deed executed by the plaintiffs on November 10, 1983 and the consequential relief of declaration of 1/8th share of the counter-claimants are palpably time barred. The judge observed that the counter-claim against the plaintiffs is a sham relief claimed merely to by-pass the rejection of the same prayer in the form of amendment sought by the plaintiffs previously by this court and is patently time-barred. The court dismissed the petition by decreeing that, “What the plaintiffs could not achieve directly in view of rejection of their similar amendment application previously, they sought to claim indirectly by setting up the opposite party nos. 1 and 2, who claimed such relief, which was already refused to be incorporated by this Court, in the garb of the counter-claim of recovery of possession against the defendants. It is well-settled that, what cannot be directly granted in law cannot be obtained indirectly. Hence, the effort of the opposite party nos. 1 and 2 to insert the relief of recovery of possession against the co-defendants is an oblique and mala fide attempt to defeat the previous order of this court.”