[Order VIII Rule 6A CPC] Counter Claim Cannot Be Filed After Framing Of Issues: SC [Read Order]

The Supreme Court has reiterated that a counter-claim cannot be filed after the issues are framed.

The Court, while dismissing a Special Leave Petition, which raised this sole legal issue, referred to its last year judgment in Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri.

In Ashok Kumar Kalra, it was held that a Court can exercise its discretion and permit the filing of a counter-claim after the written statement, till the stage of framing of the issues of the trial. The bench  comprising Justices Rohinton Fali Nariman and S. Ravindra Bhat took note of the following observations made by the Three judge bench in the said judgment

"Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: i. Period of delay. ii. Prescribed limitation period for the cause of action pleaded. iii. Reason for the delay. iv. Defendant's assertion of his right. v. Similarity of cause of action between the main suit and the counterclaim. vi. Cost of fresh litigation. vii. Injustice and abuse of process. viii. Prejudice to the opposite party. ix. and facts and circumstances of each case. x. In any case, not after framing of the issues." "

While dismissing the SLP, the bench observed:

"Given the fact that on the facts of the present case, a counter-claim was filed after the issues were framed, the said counter-claim cannot be filed as per the law laid down by this judgment. Consequently, the Special Leave Petition is dismissed. However, it will be open for the petitioner to file a fresh suit based on the cause of action in the counter-claim if it is otherwise permissible in law. " 

Case name: ASHOK KUMAR KALRA  vs. WING CDR SURENDRA AGNIHOTRI 
Case no.: SLP(C) No(s). 23599/2018
Coram: Justices Rohinton Fali Nariman and S. Ravindra Bhat 
Counsel for Parties: K.K. Tyagi and Sr. Adv Dinesh Dwivedi

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