Principles

·  Limitations of Actions—Counterclaim—Period the same as if claim independently brought

A counterclaim or set-off must be pleaded ,vithin the statutory period limiting the claim had it been brought independently.

Judgment

   Advocates: Mahgoub and Dafalla f or plaintiffs-applicants

Abdalla El Hassan for defendants-respondents

   Babiker Awadalla J. May 27, 1963:—I regret I am unable to see on what grounds His Honour the Province Judge is equating a counterclaim to an Indian equitable set-off when the limitation rule regarding counterclaims is crystal clear both in England and India. But the rule cited by His Honour the Province Judge from Mulla, Code of Civil Procedure (8th students’ ed. 1940) does not appear to be finally settled. At I AJ.R. Commentaries, Indian Limitation Act 128 (3rd ed. 1952), it is stated as follows:

“…a legal set-off cannot be claimed, unless a suit for the amount sought to be set off would have been within time at the date on which the suit wherein the set-off is claimed was filed. But there is a conflict of decisions whether an equitable set-off can be claimed where a suit for the amount claimed would have been barred by limitation.”

   In India, the rule regarding counterclaims is stated by the same authority at the same page as follows:

“Where the defendant in a suit makes a counterclaim against the plaintiff, such counterclaim virtually amounts to a suit and hence can be made only where at the date when it is made an independent suit for the amount claimed would have been in time.”

   In England the limitation rule governing both counterclaims and set-off is to be found in the Limitation Act of 1939, s. 28, which provides that “any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have commenced on the same date as the action in which the set-off or counterclaim is pleaded.”

Before 1939, different rules applied for which regard to set-off time ceased to run on the action being commenced, but with regard to counter claim only when it was pleaded. Franks, Limitation of Actions 272 (1959)

   I therefore cannot see why a different rule should apply in the Sudan when a person is raising a counterclaim than when he is bringing an ordinary action on the same cause.

   This application is therefore allowed with costs and case referred back for determination of the question whether the counterclaim would have been barred by lapse of time if it were brought as a separate suit, or otherwise.

M. A. Abu Rannat C.J. May 27, 1963:—I concur.