Order VIII Rule 6A CPC - No Bar In Taking On Record A Counter Claim Filed Long After Filing Of Written Statement But Before Framing Of Issues: Supreme Court

The Supreme Court observed that there is no bar in taking on record a counter claim filed long after filing of written statement but before framing of issues.

In this case, the counter-claim in question was filed nearly 13 years after filing of the written statement. Single Judge of the Bombay High Court dealing with the trial of suit in question, had accepted the notice of motion moved by the defendant-appellant so as to take the belatedly filed counter-claim on record. The Division Bench of the High Court later set aside the said order and remitted the matter for consideration afresh, essentially on the ground that the plaintiffs were not afforded adequate opportunity to file reply and to contest the said notice of motion.

The issue raised before the Apex Court by the appellant- defendant was whether the Division Bench of the High Court has been justified in interfering with the order passed by the Single Judge for taking the counter-claim on record?

The court, referring to Order VIII Rule 6-A of the Code of Civil Procedure, 1908 and Rule 95 of the Bombay High Court (Original Side) Rules, noted that in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Ors.: (2020) 2 SCC 394 it was held that the defendant cannot be permitted to file counter-claim after the issues are framed and the suit has proceeded substantially.

"While proceeding on the fundamental principles that the rules of procedure are intended to subserve the cause of justice rather than to punish the parties in conduct of their case, we are clearly of the view that the counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement. Indisputably, the counter-claim was filed on 07.09.2018 and until that date, issues had not been framed in the suit...

..we are clearly of the view that neither the requirements of Order VIII Rule 6-A CPC or Rule 95 of the Rules nor the principles enunciated and explained in Ashok Kumar Kalra (supra) operate as a bar over the prayer of the appellant for taking the belatedly filed counter-claim on record, which was indeed filed before framing of issues."

Observing thus, the bench allowed the appeal and restored the single bench order taking on record the counter claim.

Case details

Mahesh Govindji Trivedi vs Bakul Maganlal Vyas | 2022 LiveLaw (SC) 836 |  CA 7203 OF 2022 | 12 October 2022 | Justices Dinesh Maheshwari and Aniruddha Bose

Headnotes

Code of Civil Procedure, 1908 ; Order VIII Rule 6A CPC - Counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement - No bar for taking the belatedly filed counter-claim on record, which was indeed filed before framing of issues - Referred to Ashok Kumar Kalra vs Wing Cdr. Surendra Agnihotri  (2020) 2 SCC 394. (Para 13-14)

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