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When counter claim for mandatory injunction will be barred by limitation?

IN THE HIGH COURT OF BOMBAY

Second Appeal No.109 Of 1995

Decided On: 02.02.2017

Anna Parisa Chougule,
Vs.
Sou. Sulochana Nabhiraj Chougule Responden

Hon’ble Judges/Coram:S.C. Gupte,J.

Citation: 2017(6) MHLJ 693

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 ex-parte.

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 6-A 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 set-off under rule 6, to set up, 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 Pereira1 , 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. 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 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. 1 2012 (2) Mh. L.J.

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-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.

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