Counter claim
NAGARAJ
(Querist) 19 September 2019
This query is : Resolved
Whether defendants filed Counter claims against plaintiff after commencement of trial.....original w/a filed in the year of 2011...additional w/a filed on 2018......now the stage s x of pw1
Dr J C Vashista
(Expert) 20 September 2019
Counter claim must be filed with written statement of defendant (within 30 days of service-extendable to 90 days).
NAGARAJ
(Querist) 20 September 2019
Sir this is suit for partition. 12 year old matter ..if plaintiff amended the plaint added some ancestral property in the suit den stage given for additional written statement at this stage can defendant file counter claim alongwith additional written statement.
Dr J C Vashista
(Expert) 21 September 2019
Although Civil Procedure Code, 1908 (as amended) is directory and not mandatory, you may try your luck and file counterclaim with application for condonation of delay on technical and justified ground(s).
It would be appropriate to consult a local prudent senior for better appreciation of facts/documents/ records/ case file and guide you properly.
Azhagananth
(Expert) 22 September 2019
In S.D. Mithra's Classic work on law relating to the partition, it has been stated on the basis of binding authorities that cause of action for a suit for partition is a recurring or continuing one. In other words, once it is found that the property in respect of which the parties claimed partition is partible, then there is no period prescribed for limitation. https://indiankanoon.org/doc/189662147/
Admittedly, in the present case partition is sought for by amendment in the written statement incorporating counter claim. It is also settled principle of law that the cause of action for partition is recurring cause of action. The partition as claimed by the defendants-petitioners by way of counter claim can be claimed by the petitioners by filing a separate suit for partition with respect to that property. If the separate suit for partition is not barred by law of limitation, there is no question of limitation in filing the counter claim arises. Thus, in my opinion, the learned court below has wrongly refused to exercise the jurisdiction vested in it by law and rejected the amendment application filed by the defendants- petitioners in the manner not permitted by law and thereby occasioned failure of justice. Accordingly, this civil miscellaneous application is allowed
https://indiankanoon.org/doc/177717361/
So, my opinion is that, there is no limitation for filing counter claim in partition suit
