O VIII R 9 CPC | Defendant Cannot File Counterclaim After Submission Of Written Statement Except With Permission Of Court: Madhya Pradesh High Court

The Madhya Pradesh High Court, Indore Bench recently held that the Defendant in a civil suit cannot file a counterclaim after they have submitted their written statements, except with the leave of the Court.

The Bench comprising Justice Subodh Abhyankar made the aforesaid observation by relying on the decision of the Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani-

A perusal of the said provisions of Order 8 of CPC, coupled with the aforesaid decision of the Supreme Court, leaves no manner of doubt that after the written statement has been filed by a defendant, such defendant cannot be allowed to file the counter claim separately, except with the permission of the court. However, in the present case, it is an admitted fact that defendants No.4 and 7 have filed their written statement jointly on 22/01/2021, whereas in their counter claim, they have also joined the defendants No.1 to 3. Such joining of the defendants no.1 to 3 in the counter claim of the defendants No.4 and 7, when the defendants no.1 to 3 had already forfeited their right to file counterclaim, without the permission of the court, in the considered opinion of this Court is nothing but a back door entry of defendants No.1 to 3 to join in such cause indirectly for which they were precluded to act directly.

Facts of the case were that the Petitioner/Plaintiff had instituted a suit for recovery against the Defendants. Two of the Defendants i.e., No.1 and No.3 had submitted their Written Statement before the trial court. Thereafter, Defendant No.4 and No.7 submitted their Written Statement and their counterclaim wherein they were joined by Defendant No.1 and No.3. The Petitioner/Plaintiff moved an application under OVII R11 CPC against the said counterclaim, asserting that Defendant No.1 and No.3 could not file counterclaim after filing their written statement without seeking permission of the court. However, the application moved by Plaintiff was rejected. Aggrieved, the Petitioner moved the Court.

The Petitioner submitted before the Court that the impugned order passed by the court below was in teeth of the provision under Order VIII Rule 9 CPC. It was argued that Defendant No.1 and No.3 ought to have taken leave of the trial court before filing a joint counterclaim with the other defendants.

Examining the submissions of parties and documents on record, the Court concurred with the submissions put forth by the Petitioner. The Court observed that once their right to file a counterclaim was closed, Defendant No.1 and No.3 could not take a backdoor entry and file a joint reply with other defendants without taking leave of the court. Thus, the Court concluded that the counterclaim, so far as it related to the claim of Defendant No.1 and No.3 was unsustainable in the eyes of law and was liable to be rejected. However, the Court clarified that counterclaim of Defendant No.4 and No.7 would survive as it was filed along with their Written Statement-

In such circumstances, the revision petition is partly allowed and the impugned order dated 06/03/2021 is hereby partly set aside so far as it relates to the counter claim filed by defendants No.1 to 3 is concerned, however, the counter claim shall survive so far as it relates to defendants No.4 and 7 only. This Court is of the considered opinion that merely because the issues have been framed and defendants No.1 to 3 have also filed their written statement, it would not bar the other defendants who are filing the written statement for the first time in the Court with the permission of the court, and even subsequent to framing of the issues, their right to file the counter claim as provided under Order 8 Rule 6A of CPC shall survive.

With the aforesaid observations, the revision was partly allowed and the impugned order, so far as related to allowing the counterclaim on behalf of Defendant No.1 and No.3, was set aside.

Cause Title: Shri Ambaram v. Shri Jadulal & Ors

Case Citation: 2023 LiveLaw (MP) 53

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