JUDGMENT : 1. The plaintiff in O.S.No. 6 of 1997 has approached this Court challenging the order of the trial court in permitting the defendants to amend the written statement, thereby allowing them to raise a counter claim against the plaintiff. 2. The suit is one for declaration and injunction. Initially, the suit was dismissed against which an appeal was preferred by the petitioner before the Addl. District Court, Ernakulam as A.S. No. 10 of 2003 which was also dismissed. Aggrieved by the dismissal of the appeal, A.S. No. 10 of 2003, the petitioner filed R.S.A No. 54 of 2006. By judgment dated 04.01.2012, this Court allowed the appeal, setting aside the dismissal of the suit and remanding the suit for a fresh consideration. While remanding the matter back to the trial court, this Court found that it is necessary to measure the properties of the plaintiff and the defendants with reference to their respective documents of title. It was also found that since Exts.C2 and C2(a) and the properties of the plaintiff and the defendants were not measured with the documents and title, this Court found that the report cannot be accepted. On remand, the plaintiff took commission for local inspection and Ext.P7 report was filed by the advocate commissioner. Once the report was filed, the defendants sought leave to amend their written statement and thereby sought to raise a counter claim against the plaintiff/petitioner. By raising the counter claim the defendants wanted to incorporate a prayer for a mandatory injunction directing the plaintiff to remove/demolish the constructions made in the counter claim schedule property. Though the petitioner resisted the application for amendment on the ground that there is considerable delay on the part of the defendants in raising the counter claim, the court below by the order impugned, allowed the amendment thereby permitting the defendants/respondents to raise the counter claim. It is aggrieved by the aforesaid order, the petitioner has approached this Court invoking the powers under Article 227 of the Constitution of India. 3. I have heard R.S. Kalkura, the learned counsel appearing for the petitioner, G.Rajagopal, S. Leenalekshmi and N. Renjnee Devi, the learned counsel appearing for the respondents 1 and 2. 4. Sri.R.S.Kalkura raised a preliminary objection with regard to the maintainability of the counter claim on the ground that the same is barred by limitation. 3. I have heard R.S. Kalkura, the learned counsel appearing for the petitioner, G.Rajagopal, S. Leenalekshmi and N. Renjnee Devi, the learned counsel appearing for the respondents 1 and 2. 4. Sri.R.S.Kalkura raised a preliminary objection with regard to the maintainability of the counter claim on the ground that the same is barred by limitation. He also further pointed out that, there is no absolute right for the defendants to file counter claim and at any rate, the counter claim should have been filed before the time prescribed for delivering the defense. He relied on the judgment of the Hon’ble Supreme Court in Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, 2019 (4) KLT 790 (SC). In so far as the contention regarding the period of limitation is concerned, the learned counsel appearing for the petitioner relied on the judgment of the Supreme Court in Thomas Mathew v. Construction Engineer, K.L.D.C. Limited, (2018) 12 SCC 560 . According to the learned counsel, the trial court has gone beyond the order of remand and therefore, the order is unsustainable. 5. On the other hand, the learned counsel appearing for the respondents/defendants submitted that there is no period prescribed for filing of counter claim. According to the learned counsel, since the wrong committed by the plaintiff was continuing in nature, there cannot be any limitation to peg the defendants in the matter of filing of the counter claim. It is pointed out by the learned counsel that the principles governing the amendment of the written statement have to be liberally construed. He relied on the judgment of the Supreme Court in Sankar Dastidar v. Shrimati Banjula Dastidar, AIR 2007 SC 514 . He also relied on the following judgments of Madras High Court Bharathamatha Desiya Sangam v. Roja Sundaram and Others, AIR 1987 Madras 183 and Sheo Narayan Singh and Others v. Ambica Singh and Others, AIR 1970 Pat 246 . The learned counsel further pointed out that since the remand is an open remand, the defendants were entitled to file an application for raising the counter claim. At any rate, according to the counsel for the defendants, the cause of action to file the amendment for raising the counter claim arose only after the commissioner had filed his report, pursuant to the remand. At any rate, according to the counsel for the defendants, the cause of action to file the amendment for raising the counter claim arose only after the commissioner had filed his report, pursuant to the remand. Without any further delay, it is submitted that the defendants had filed the application for amendment raising the counter claim and therefore, supported the findings in Ext.P8 order. 6. I have considered the rival submissions raised across the Bar and have perused the order impugned in the original petition. 7. On the basis of the rival submissions raised across the Bar, the points which arise for consideration of this Court are as follows: (a) Whether the order of remand in Ext.P1 order was an open remand or a closed one. (b) whether the defendant was entitled to seek for amendment of the written statement raising the counter claim after the issues were framed. (c) Whether the counter claim is barred by limitation. 8. Framing of the above questions were necessitated because both parties had divergent views regarding the nature of the remand ordered by this Court in Ext.P1 judgment. Probably, the sustainability of Ext.P8 order would depend upon how this Court construes Ext.P1 judgment of this Court remanding the suit for a fresh consideration. This is more so because, the learned counsel for the petitioner has raised a specific contention that the counter claim cannot be raised after framing of the issues. In this context, this Court is called upon to judge the impact of Ext.P1 judgment rendered by this Court. 9. As stated earlier, the suit is for a declaration and injunction. A perusal of Ext.P1 judgment shows that there is no doubt this Court had remanded the case for a fresh decision, but the question is whether a de novo trial of the case was ordered. A further reading of the judgment, especially paragraphs 8 to 10 of the judgment, shows the precise point on which this Court refused to grant the decree as prayed for by the plaintiff. This Court was of the view that so long as the properties of the plaintiff and the defendants are not measured in terms of their documents, Exts.C2 and C2(a) plans cannot be accepted by this Court. Paragraphs 8, 9 and 10 of Ext. P1 judgment read as under: “8. This Court was of the view that so long as the properties of the plaintiff and the defendants are not measured in terms of their documents, Exts.C2 and C2(a) plans cannot be accepted by this Court. Paragraphs 8, 9 and 10 of Ext. P1 judgment read as under: “8. Next question is whether the appellant is entitled to the declaration and injunction as prayed for against the respondents. In Ext.A2, which is seen prepared by a Village Officer the width of plaint B schedule is stated as 18 links towards southern extremity. It is at that portion, appellant claims that respondents own property. In Ext.C2(a), plan prepared by the Advocate Commissioner, black line on the western side is shown as boundary of the way having width of 18 links while the existing compound wall or other construction is shown as along the red line. From Ext.C2(a) it may appear that respondents have encroached into the plaint B schedule having width of 18 links but it is relevant to note that in preparing Exts.C2 and C2(a), property of respondents was not measured with reference to their title deed (document No. 1141 of 1993) a copy of which appellant had produced in the first appellate court but was not taken into account. 9. To resolve the dispute so far as appellant and respondents is concerned I am inclined to think that it is necessary to measure properties of appellant and respondents with reference to their respective documents of title. Since the courts below have not accepted Exts.C2 and C2(a) and the properties of appellant and respondent are not measured with reference to their documents of title, I am not inclined to accept and act upon Exts.C2 and C2(a). 10. In the light of what I have stated above it has become necessary to send the case back to the trial court for fresh decision after getting fresh report and plan on measuring properties of appellant and respondents with reference to their respective documents of title. Hence Exts.C2 and C2(a) are set aside. Substantial questions of law raised are answered accordingly.” 10. A reading of the above paragraphs would show the definite purpose for which the suit was remanded to the trial court for a fresh decision. Hence Exts.C2 and C2(a) are set aside. Substantial questions of law raised are answered accordingly.” 10. A reading of the above paragraphs would show the definite purpose for which the suit was remanded to the trial court for a fresh decision. What was directed is, to cause inspection of the properties afresh and plan on measuring the properties of the parties with reference to their documents of title. Therefore, this Court has no hesitation to hold that Ext.P1 judgment could not be construed as an open remand and has to be construed for a limited purpose of enabling the advocate commissioner to measure out the properties. Hence, to that extent, the trial court went wrong. 11. Having concluded that Ext. P1 judgment cannot be construed as an open remand, then what would be the impact of the said finding on the respective rights of the parties? It must be remembered that while relegating the parties back to the trial court, this Court never intended to give any additional right other than to have the properties measured in tune with their respective title deeds. That being so, the entitlement of the defendants to raise a counter claim after delivering their defense and further after framing the issues required to be dealt with. 12. It has to be noted that the defendants had already delivered their defense by filing the written statement. Ext.P10 shows that the written statement was filed on 22.06.1998. A perusal of Ext.P10 shows that the defendants had a specific case that the plaintiff had encroached into the plaint B schedule pathway on the south - east corner and acted in an inequitable manner and therefore he is disentitled from seeking equitable relief or declaration and injunction. It is worthwhile to mention that the advocate commissioner who had initially filed Exts.C2 and C2(a) plan had specifically found the construction of the gate by the plaintiff. Having not raised any challenge to the aforesaid act of the plaintiff, it has to be construed that the defendants had acquiesced to the above act and hence no fresh cause of action arose after the remand and on filing of Ext.P7 report by the Advocate Commissioner. Having not raised any challenge to the aforesaid act of the plaintiff, it has to be construed that the defendants had acquiesced to the above act and hence no fresh cause of action arose after the remand and on filing of Ext.P7 report by the Advocate Commissioner. Therefore, as rightly contented by Sri.R.S.Kalakura, the learned counsel for the petitioner, that the contention of the defendants that a fresh cause of action arose to them after the remand and Advocate Commissioner filing his report as evidenced from Ext.P7 is completely misplaced. 13. On facts, when it is evident that the defendants were aware of the alleged encroachment by the plaintiff towards the southern side of the plaint B Scheule property, the defendants cannot, after framing of the issues seek to raise the counter claim by way of amendment. The question as to whether the gate was constructed and encroachment was done by the plaintiff into the plaint B schedule property or not, is not a point to be decided on merit by this Court. Suffice to say that the defendants did not raise any question regarding the said encroachment by raising an appropriate counter claim at any point of time when they had chosen to deliver their defense. 14. Whether the language of Order VIII Rule 6A of the Code of Civil Procedure, is mandatory or whether there is any time limit for preferring the counter claim by the defendants came up for consideration before a Three Judge Bench of the Hon’ble Supreme Court of India on reference in Ashok Kumar Kalra v. Wing CDR, Surendra Agnihothri and Others, 2019 (4) KLT 790 (SC). Answering the reference, the Hon’ble Supreme Court held that there is no absolute right to the defendants to file a counter claim with substantive delay and even if the limitation period prescribed has not elapsed, the Court has to take into consideration outer time limit for filing counter claim, which is pegged until the issues are framed. 15. It may be true that, the restriction placed as per the provisions contained under Order VI Rule 17 of the Code of Civil Procedure may not be strictly applicable to a case relating to the amendment of the written statement. Still, there is no absolute power to the trial court to grant amendment to the pleadings in the written statement thereby raising the counter claim. Still, there is no absolute power to the trial court to grant amendment to the pleadings in the written statement thereby raising the counter claim. If the amendment to the pleadings in the written statement is sought for raising a counter claim, then necessarily the principles regarding the raising of the counter claim under Order VIII Rule 6A of the Code of Civil Procedure will have to be strictly adhered to by the trial court. It is in this context, this Court has to take note of the law laid down by the Supreme Court in Ashok Kumar Kalra (supra). It is apposite to note that the principles governing raising of counter claim came up for consideration once again before Hon’ble Supreme Court in Mahesh Govindji Trivedi Vs. Bakul Magnalal Vyas and Others, 2022 KHC 7077 and it was held that counter claim filed belatedly after filing of written statement but before framing of issues is maintainable. It is significant to note that the decision in Mahesh Govindji (supra) took note of the three bench decision in Ashok Kumar Kalra (Supra) and decided the issue on facts. Though the law was stated there succinctly, a reading of the judgment shows that the Supreme Court reiterated the principles of entertaining the counter claim and categorically held that same should be before the issues are framed. This certainly would be a guiding factor for this Court while deciding this issue. It is worthwhile to mention that another learned Single Judge of this Court considered this issue in Maradi Janu v. Melodanaomana Amma, OP (C) No 1505 of 2023 dated 12.8.2024 [2024 KER 61778]. While upholding the order of the trial court in rejecting the counter claim, this Court held that the case therein did not fall within any of the parameters laid down by the Supreme Court in Ashok Kumar Kalra’s Case (supra). 16. The significance of framing of the issues in the present suit arises for consideration, especially in the light of the fact that after remand by this Court in Ext.P1 judgment no fresh issues were required to be framed by the trial court. 16. The significance of framing of the issues in the present suit arises for consideration, especially in the light of the fact that after remand by this Court in Ext.P1 judgment no fresh issues were required to be framed by the trial court. When there was no requirement for framing the issues and remand was only for the purpose of identifying the properties of the parties with reference to their title documents, this Court is persuaded to hold that the defendants were not entitled to seek amendment of written statement for raising the counter claim. 17. Since the position of law has been summarized as above, this Court also needs to look into the plea of the learned counsel for the defendants that no prejudice is caused to the plaintiff once the defendants are permitted to raise the counter claim. The basis of the argument of the learned counsel for the defendants are that once the counter claim is rejected, definitely, the defendants would be entitled to file a fresh suit on the same cause of action in view of the provisions contained in Section 22 of the Limitation Act, 1963, since the breach is a continuing one. 18. Perhaps, this Court would not have ventured into deciding this question since it was sufficient for this Court to conclude the judgment on the basis of the principles laid down by the Supreme Court in Ashok Kumar Kalra’s Case (supra). However, the learned counsel for the defendants asserted before this Court that the order of the trial court is perfectly correct since the plaintiff could not establish prejudice. However, this Court is afraid that the above contention is completely misplaced. On facts, this Court has already found that the defendants in their written statement had already stated that the alleged encroachment of the plaintiff into the B Schedule property is by putting up a gate. It is to be noted that the written statement was filed in the year 1998. Had not this Court remanded the suit for fresh consideration and for demarcation of the property, the defendants would have been left foundered since they had not asserted their rights, if any, before 2018. Hence, this Court has to necessarily answer the incidental question, “Whether the defendants are entitled to fall back on Section 22 of the Limitation Act, 1963?” 19. Hence, this Court has to necessarily answer the incidental question, “Whether the defendants are entitled to fall back on Section 22 of the Limitation Act, 1963?” 19. Before answering this issue, it will be apposite to extract Section 22 of the Limitation Act, 1963: “Section 22 - Continuing breaches and torts: In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.” 20. One should remember that the residual provision which prescribes the period of limitation where no period is provided under the Act is, Article 113. Article 113 of the Limitation Act, 1963 reads as under: Description of suits Period of limitation Time from which period begins to run PART X - Suits for which there is no prescribed period 113. Any suit for which no period of limitation is provided elsewhere in this Schedule Three Years When the right to sue accrues 21. To put it plainly, when Article 113 of the Limitation Act provides a period of 3 years for filing a suit and the period starts to run from the date on which right of action accrues, can it be said that Article 113 of the Limitation Act would control cases falling under Section 22 of the Act? Apparently, a plain reading of the aforesaid provisions may show that the two provisions stand in conflict with each other. However, this may not be so when a close analysis is made. It must be remembered that when Article 113 was inserted in the Limitation Act 1963, the Parliament was aware of the provisions of Section 22 and still it went ahead and stipulated that the period of 3 years would start to run when the right accrues to the party. Therefore, in a case where the right to file the suit accrued to the party, then he cannot fall back on Section 22 of the Limitation Act and contend that even after 3 years his suit is maintainable. Accepting the said proposition would certainly lead to incongruous situation where the plaintiff could wait for eternity to initiate action ignoring his latches thereby denuding the opposite party to raise a valid defense based on the latches of the other party. Accepting the said proposition would certainly lead to incongruous situation where the plaintiff could wait for eternity to initiate action ignoring his latches thereby denuding the opposite party to raise a valid defense based on the latches of the other party. It must be remembered that the law of limitation is intended to not to give a right where there is not one, but to interpose a bar after certain period to a suit to impose an existing right. The object is to compel the litigant to be diligent in seeking remedies in courts of law. 22. The conclusion arrived at by this Court finds support from the decision of the Supreme Court in Shakti Bhog Food Industries Vs. Central Bank of India, 2020 (4) KLT 84 (SC). The Hon’ble Supreme Court held that the provisions of Article 113 would certainly cover the cases falling under Section 22 of the Limitation Act. Paragraph 10 of the said judgment is extracted hereunder: “10. Concededly, the expression used in Art.113 is distinct from the expressions used in other Articles in the First Division dealing with suits such as Art.58 (when the right to sue “first” accrues), Art.59 (when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded “first” become known to him) and Art.104 (when the plaintiff is “first” refused the enjoyment of the right). The view taken by the trial Court, which commended to the first appellate Court and the High Court in second appeal, would inevitably entail in reading the expression in Art.113 as when the right to sue (first) accrues. This would be re-writing of that provision and doing violence to the legislative intent. We must assume that the Parliament was conscious of the distinction between the provisions referred to above and had advisedly used generic expression “when the right to sue accrues” in Art.113 of the 1963 Act. Inasmuch as, it would also cover cases falling under Section 22 of the 1963 Act, to wit, continuing breaches and torts.” 23. Applying the above principles, this Court has no doubt in its mind that the defendants had already delivered their defense as early as in the year 1998 and have raised a specific plea regarding the alleged encroachment of the plaintiff by constructing the gate in the southern side of the plaint B schedule property. Applying the above principles, this Court has no doubt in its mind that the defendants had already delivered their defense as early as in the year 1998 and have raised a specific plea regarding the alleged encroachment of the plaintiff by constructing the gate in the southern side of the plaint B schedule property. Hence, after a lapse of 20 years, the defendants cannot be permitted to seek amendment of the written statement raising a counter claim for a mandatory injunction for removal of the said encroachment. Hence, the trial court erred egregiously in holding that the question of limitation can be raised during the trial of the suit. 24. As an off shoot of these discussions, this Court finds that Ext.P8 order allowing the defendants to amend the written statement by raising the counter claim cannot stand the scrutiny of law. The trial court completely went wrong in allowing the amendment to the written statement and the order, certainly calls for interference by this Court in exercise of the powers under Article 227 of Constitution of India. 25. Accordingly, the Original Petition is allowed. Ext.P8 order in I.A No. 9444 of 2018 in O.S No. 6 of 1997 of the II Additional Munsiff’s Court, Ernakulam is set aside and consequently I.A. No 9444 of 2018 in OS No 6 of 1997 will stand dismissed. 26. Considering the fact that the suit is of the year 1997, the parties are directed to appear before the II Additional Munsiffs, Court, Ernakulam on 06.09.2024. The trial court is directed to dispose the suit as expeditiously as possible according to the priority. 27. Ordered accordingly.