[Order VIII Rule 6A CPC] When counter claim cannot be filed? Explains SC

[Order VIII Rule 6A CPC] When counter claim cannot be filed? Explains SC

What is order VIII Rule 6A CPC?

Order VIII Rule 6A CPC states about counter claim by defendants

It states that, (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.

Case law

A counter-claim cannot be filed after the issues are framed, reiterated the Apex Court in the case of Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri [SLP(C) No(s). 23599/2018]

The bench comprising Justices Rohinton Fali Nariman and S. Ravindra Bhat, observed this while dismissing a Special Leave Petition, rose out of impugned final judgment and order dated 01-05-2018 in CR No. 253/2009 passed by the High Court of Judicature at Allahabad.

  • In this case, it was ruled that a Court can exercise its discretion and allow the filing of a counter-claim after the written statement, till the stage of framing of the issues of the trial.
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  • The Apex Court considered the 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:
  • Period of delay.
  •  Prescribed limitation period for the cause of action pleaded.
  • Reason for the delay.
  • Defendant’s assertion of his right.
  • Similarity of the cause of action between the main suit and the counterclaim.
  • Cost of fresh litigation.
  • Injustice and abuse of process.
  • Prejudice to the opposite party.
  • and facts and circumstances of each case
  • In any case, not after framing of the issues
  • “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,” the Cout noted this while dismissing the SPL.

[Order VIII Rule 6A CPC] When counter claim cannot be filed? Explains SC

Also Read: [Section 96 CPC] When Strangers Can File An Appeal?

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