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2017 0 Supreme(Bom) 139

2017 5 AllMR 525 ; 2017 2 BomCR 530 ; 2017 6 MhLJ 693

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.C. GUPTE, J.
Anna Parisa Chougule, since deceased by his heirs and legal representatives –
Appellant
Versus
Sou. Sulochana Nabhiraj Chougule – Respondent
SECOND APPEAL NO.109 OF 1995
Decided On : 02-02-2017

Important Point: A counter-claim has to be treated as a

claim and governed by the rules applicable to the claim
and the same operates as a cross-suit. A counter-claim
seeking a mandatory injunction on the basis of an
agreement will have to be governed by the ordinary rules
of limitation and such limitation would be three years
from the date of accrual of cause of action.

Subject: Civil Law - Limitation and Counterclaims

counter-claim - limitation - mandatory injunction - partition - power looms -

shifting of property - continuing cause of action - breach of contract -
accrual of cause of action

Act Referred :
CIVIL PROCEDURE CODE : O.8 R.6(a)
LIMITATION ACT : S.22, Art.113

Civil Procedure Code, 1908-Order VIII, Rule 6-A-Limitation Act,

1963, Article 113-Limitation for counter-claim.-Counter-claim filed
after 3 years of cause of action, is barred by limitation.

Insofar as the appellant`s case of bar of limitation is

concerned, a counter-claim has to be treated as a claim and
governed by the rules applicable to the claim and the same
operates as a cross-suit. A counter-claim seeking a mandatory
injunction on the basis of an agreement will have to be governed
by the ordinary rules of limitation and such limitation would be
three years from the date of accrual of cause of action.

Page No. 1 of 5
 In the present case, the cause of action has accrued to the
defendant, when the parties executed the deed of partition on 13
December, 1976. A counter-claim filed after the accrual of cause of
action after three years is clearly barred. In the case of Kimberley
Pereira v. Mario Pereira, 2012 (2) Mh LJ 101, has held that a
counter-claim, the period of limitation for which not being
provided under Order VIII, Rule 6-A of the Civil Procedure, is
governed by Article 113 of the Limitation Act and, accordingly,
must be filed within three years from the date of accrual of the
cause of action.

Limitation Act, 1963 - Section 22-Continuing cause of action.-

For a cause of action to be termed as "continuing cause of action",
breach of contract or tort must be continuing.

The first Appellate Court has rejected the appellant`s plea of

bar of limitation on the ground that the cause of action accruing to
the respondent is a continuing cause of action. Section 22 of the
Limitation Act provides for a continuing cause of action. For a
cause of action to be termed as a continuing cause of action, the
breach of contract or tort, as the case may be, must be continuing.
Non-performance of an obligation of the opponent based on a
contract between the parties cannot be said to be a continuing
breach so that a fresh period of limitation can be said to being to
run at every moment of time during which the breach continues.

The liability to perform the obligation begins when the

contract is made. At that point of time, a cause of action accrues to
the claimant. In this case, such cause of action accrued on 13th
December, 1976, when the parties entered into the written
bargain, under which the appellant was to shift the power looms of
the respondent in a working condition to a stipulated place. In the
premises, the respondent`s counter-claim is clearly barred by the
law of limitation.

Cases Referred:
Kimberley Pereira vs. Mario Pereira, , 2012 (2) Mh. L.J. —Relied. - Relied

Advocates: Advocates Appeared :

For the Appellant : Mr. T.S. Ingale

JUDGMENT :

Heard learned Counsel for the Appellants. The Respondent is absent

despite notice. Even on the last occasion, i.e. on 12 January 2017, none
appeared for the Respondent. The appeal is, accordingly, heard

Page No. 2 of 5
exparte.

2. The Second Appeal raises substantial questions of law concerning (a)

limitation applicable to a counter-claim and (b) interpretation of Section 22
of the Limitation Act, which provides for limitation in the case of a
continuing cause of action.

3. The Appellant is the Original Plaintiff, who filed the present suit for
damages against the Respondent (Original Defendant). The case of the
Appellant in the suit is that there was a partition of the joint family property
between the Plaintiff and each of the brothers, as also the Defendant
(wife of Nabhiraj Parisa Chougule), who had power looms running in the
property. The partition deed provided that the power looms were to be
possessed and used by individual parties, in whose names the power looms
stand and that the power looms of the Respondent were to be shifted by
the Appellant to the shed of Nabhiraj in working condition. It is the
Appellant's case that it was the Respondent, who was to shift her power
looms and that the Appellant was willing to give her the same but that
the Defendant did not have any place where the power looms could be
shifted. It is submitted that the power looms had to be kept in the shed,
which came to the Appellant's share. The Appellant, in the premises, filed
the present suit claiming recovery of rent and damages, along with future
mesne profits from the Respondent. The Respondent, for her part, filed a
counter-claim in the suit, claiming a mandatory injunction directing the
Appellant to install power looms in working condition in the shed of
Nabhiraj. Both Trial Court and the first Appellate Court came to the
conclusion that the Appellant had no case for damages. Both courts below
decreed the Respondent's counter-claim on the ground that it was the
Appellant, who was bound to shift the power looms of the Respondent to
the shed of Nabhiraj in working condition and that he had failed to do so.

4. Learned Counsel for the Appellant submits that he is mainly aggrieved

by the decree passed by the Courts below on the Respondent's counter-
claim. He submits that a counter-claim for a mandatory injunction, which is
in the nature of a prayer for possession, cannot be granted in the
counter-claim. He relies on the provisions of Order VIII Rule 6A of the Code
of Civil Procedure. Learned Counsel further submits that the Respondent's
counter-claim, in any event, was barred by the law of limitation, since the
counter-claim seeks to enforce the Appellant's liability to shift the power
looms in working condition contained in a writing of 13 December 1976 and
that the counter-claim filed on 29 November 1984, is beyond time, having
regard to Article 113 of the Schedule to the Limitation Act, 1963.

5. Order VIII Rule 6-A of the Code of Civil Procedure permits a defendant in
a suit, in addition to his right of pleading a setoff under rule 6, to set up,
Page No. 3 of 5
by way of counter-claim against the plaintiff any 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 delivers 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 in
respect of any right or claim arising out of a cause of action available to the
defendant against the plaintiff. There is no merit in the contention of
learned Counsel for the Appellant on the permissibility of the counter-claim.

6. Insofar as the Appellant's case of bar of limitation is concerned, a

counter-claim has to be treated as a claim and governed by the rules
applicable to the claim and the same operates as a cross-suit. A counter-
claim seeking a mandatory injunction on the basis of an agreement will
have to be governed by the ordinary rules of limitation and such limitation
would be three years from the date of accrual of cause of action. In the
present case, the cause of action has accrued to the Defendant, when the
parties executed the deed of partition on 13 December 1976. A counter-
claim filed after the accrual of cause of action after three years is clearly
barred. Our Court, in the case of Kimberley Pereira vs. Mario Pereira, 2012
(2) Mh. L.J., has held that a counter-claim, the period of limitation for which
not being provided under Order VIII Rule 6-A of the Civil Procedure, is
governed by Article 113 of the Limitation Act and, accordingly, must be
filed within three years from the date of accrual of the cause of action.

7. The first Appellate Court has rejected the Appellant's plea of bar of
limitation on the ground that the cause of action accruing to the
Respondent is a continuing cause of action. Section 22 of the Limitation Act
provides for a continuing cause of action. For a cause of action to be
termed as a continuing cause of action, the breach of contract or tort, as
the case may be, must be continuing. Nonperformance of an obligation of
the opponent based on a contract between the parties cannot be said to be
a continuing breach so that a fresh period of limitation can be said to
begin to run at every moment of time during which the breach
continues. The liability to perform the obligation begins when the contract
is made. At that point of time, a cause of action accrues to the claimant.
In this case, such cause of action accrued on 13 December 1976, when the
parties entered into the written bargain, under which the Appellant was to
shift the power looms of the Respondent in a working condition to a
stipulated place. In the premises, the Respondent's counter claim is clearly
barred by the law of limitation.

8. The Second Appeal is, accordingly, allowed to the extent that the
impugned judgment and order of the District Court dismissed Regular Civil
Appeal No.450 of 1992 in respect of the decree passed on the counter-

Page No. 4 of 5
claim of the Respondent. The counter-claim of the Respondent in Regular
Civil Suit No.140 of 1984 is dismissed. No order as to costs.

Page No. 5 of 5