IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SLP (C) NO. 23599 OF 2018    

ASHOK KUMAR KALRA                                  …PETITIONER         

VERSUS

WING CDR. SURENDRA AGNIHOTRI  & ORS.                        …RESPONDENTS

JUDGMENT    

N.V. RAMANA, J.    

1. Questions about procedural justice are remarkably persistent

and usual in the life of Common Law Courts. However,

achieving a perfect procedural system may be feasible or

affordable, rather  more manageable  standards of  meaningful

participation needs  to  be  aspired while  balancing  cost, time

and accuracy at the same time.

2. The present reference placed before us arises out of the order

dated 10.09.2018 passed by a two­Judge Bench of this Court,

wherein clarification has been sought as to the interpretation of

REPORTABLE

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Order  VIII  Rule  6A  of the  Civil Procedure  Code (hereinafter

referred to as “the CPC”), regarding the filing of counter­claim

by a defendant in a suit.  The reference order dated 10.09.2018

is extracted below: “......... The papers to be placed before the Hon’ble Chief Justice of India for constitution of a three­Judge Bench  to look into the effect of our previous judgments as well as whether the language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature.”

(emphasis supplied)

3. Before we proceed further, we need to allude to the brief factual

background necessary for the disposal of this reference. A

dispute arose between the Petitioner (defendant  no. 2) and

Respondent No. 1 (plaintiff) concerning performance of

agreement to sell dated 20.11.1987 and 04.10.1989.

Respondent No.1 (plaintiff) filed the suit for specific

performance against the petitioner (defendant no. 2) on

02.05.2008. Petitioner (defendant No.2) herein filed a written

statement  on 2.12.2008 and counter­claim on 15.3.2009, in

the same suit. By order dated 12.05.2009, the trial court

rejected the objections, concerning filing of the counter­claim

after filing of the written statement and framing of issues.

Order dated 15.05.2009 was challenged before the High Court,

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in Civil Revision No. 253 of 2009, the High Court allowed the

same and quashed the counter­claim. Aggrieved by the

aforesaid order  of the  High  Court, the  petitioner (defendant

No.2) herein approached the Division Bench of this court,

which has referred the matter to a three­Judge Bench.   

4. The learned counsel appearing on behalf of the Petitioner

submitted that the intent behind Order VIII Rule 6A of the CPC

is  to provide an enabling provision  for  the  filing of  counter­

claim so as to avoid multiplicity of proceedings, thereby saving

the time of the Courts and avoiding inconvenience to the

parties.  Therefore,  no  specific  statutory  bar  or  embargo  has

been imposed upon the Court’s jurisdiction to entertain a

counter­claim except the limitation under the said  provision

which provides that the cause of action in the counter­claim

must arise either before or after the filing of the suit but before

the defendant has delivered his defence. The learned counsel

also submitted that if permitting the counter­claim would lead

to protracting the trial and cause delay in deciding the suit, the

Court  would be justified in exercising its discretion  by  not

permitting the filing of the counter­claim. Relying on the

judgments of this Court in Salem Advocate Bar Association,

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Tamil Nadu v. Union Of India,  AIR 2005 SC 3353, and Jai

Jai Ram Manohar Lal v. National Building Material

Supply,  Gurgaon,  (1969) 1 SCC 869,  the learned counsel

lastly submitted that rules of procedure must not be

interpreted  in a  manner that  ultimately results in failure  of

justice.

5. On the other hand, the learned Senior counsel for the

respondent submitted that the language of the statute, and the

scheme of the Order, indicates that the counter­claim has to be

a part  of the  written  statement.  The  learned  senior  counsel

strengthened the above submission by relying on the statutory

requirement that the cause of action relating to a counter­claim

must arise before the filing of the written statement, and

submitted that the counter­claim must therefore form a part of

the written statement. The learned senior counsel also relied

on the language of Order VIII Rule 6 of the CPC, which requires

a defendant’s claim to set­off to be a part of the written

statement, to suggest that the same rules should also apply to

the filing of a counter­claim, keeping in mind the placement of

the provision relating to counter­ claim in Order VIII Rule 6A of

the CPC.

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6. We have heard the learned counsel on either side at length and

perused the material  available on record. In  the  light  of the

reference and the arguments advanced on behalf of the parties,

the following issues arise for consideration before this Court:

1) Whether Order VIII Rule 6A of the CPC mandates an embargo on filing the counter­claim after filing the written statement?

2) if the answer to the aforesaid question is in negative, then what are  the restrictions on  filing  the counter­ claim after filing of the Written Statement?

7. At the outset, there is no gainsaying that the procedural justice

is imbibed to provide further impetus to the substantive

justice. It is this extended procedural fairness provided by the

national courts, which adds to the legitimacy and commends

support of general public.  On the other  hand,  we  must  be

mindful of the legislative intention to provide for certainty and

clarity. In the name of substantive justice, providing unlimited

and unrestricted rights in itself will be detrimental to certainty

and would lead to the state of lawlessness. In this regard, this

Court needs to recognize and harmoniously stitch the two

types of justice, so as to have an effective, accurate and

participatory judicial system.

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8. Having observed on nuances of procedural justice, we need to

turn our attention to the Order VIII of the CPC, which deals

with written statement, set­off and counter­claim. Rules 1 to 5

of Order VIII of the CPC deal with the written statement. This

Order dealing with the written statement was amended

extensively by the Code of  Civil  Procedure (Amendment) Act,

2002 (Act No. 22 of 2002) (hereinafter referred to as “Act 22 of

2002”), whereby the defendant shall,  within thirty days from

the date of service of summons on  him, present a written

statement  of  his  defence. In case he fails to file the written

statement  within  the  said  period of thirty  days,  he  shall  be

allowed to file the same on such other day, as may be specified

by the Court, for reasons to be recorded in writing, but which

shall not be later than ninety days from the date of service of

summons.

9. Order VIII Rule 6 of the CPC specifies the particulars of set­off

to be given in written statement and the same reads as under:  

Order VIII Rule 6:

6.  Particulars  of  set­off to  be given  in written statement:­ (1) Where in a suit for the recovery of money the defendant claims to set­off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the

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plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s suit, the defendant  may, at the first  hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set­off.  

(2) Effect of set­off: ­ The written statement shall have the same effect as a plaint in a cross­ suit  so  as to  enable the  Court to  pronounce a final judgment in respect both of the original claim and of the set­off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3)  The rules relating to a written statement by a defendant apply to a written statement  in answer to a claim of set­off.

Order VIII Rule 6A, which pertains to the counter­claim, reads

as under:

Order VIII Rule 6A:

6A. Counter­claim by Defendant­(1)  A defendant in a suit may, in addition to his right of pleading a set­off under rule 6, set up, by way of counter­claim 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 counter­claim is in the nature of a claim for damages or not:

Provided that such counter­claim shall not exceed the pecuniary limits of the jurisdiction of the court.

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

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

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

10. Thus, as per Order VIII Rule 6 CPC, the defendant can claim

set­off of any ascertained sum of money legally recoverable by

him from the plaintiff, against the plaintiff’s demand, in a suit

for recovery of money. Whereas, Rule 6A deals with counter­

claim by defendant, according to which a defendant in a suit

may, in addition to his right of pleading a set­off under Rule 6,

set up, by way of counter­claim 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 filing of the suit but before the defendant has delivered

his  defence or  before the time  prescribed for delivering  his

defence has expired, whether such counter­claim is in the

nature of a claim for damages or not.

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11. The counter­claim shall be treated as a plaint and governed by

the rules applicable to plaints. Order VIII Rule 6­G says that

the rules relating to a written statement by a defendant shall

apply to a written statement filed in answer to a counter­claim.

As per Rule 8, any ground of defence which has arisen after the

institution of the suit or the presentation of a written statement

claiming a set­off or counter­claim may be raised by the

defendant or plaintiff, as the case may be, in his written

statement.   Rule 9 of Order VIII prohibits presentation of

pleadings subsequent to the written statement of a defendant

other than by way of defence to set­off or counter­claim, except

by the leave of the Court, and upon such terms as the Court

thinks fit; and the provision further stipulates that the Court

may at any time require a written statement or additional

written statement from any of the parties and fix a time of not

more than thirty days for presenting the same.   This

amendment with respect to subsequent pleadings was made to

the CPC by way of Act 22 of 2002. At the cost of repetition, we

may note the conditions for filing a counter­claim under Order

VIII Rule 6A­ i. Counter­claim can be for claim of

damages or otherwise.

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ii. Counter­claim should relate to the cause of action, which may accrue before or even after filing the suit.

iii. If the cause of action in the counter­claim relates to one accrued after filing of suit, it should be one accruing before filing of the  written statement  or the time given for the same.

When we look at the whole scheme of Order VIII CPC, it

unequivocally points out at the legislative intent to advance the

cause of justice  by  placing  embargo on  the  belated  filing of

written statement, set­off and counter­claim.

12. We have to take note of the fact that Rule 6A was introduced in

the CPC by the Code of  Civil  Procedure (Amendment)  Act of

1976 (Act No.104 of 1976), and before the amendment, except

in money suits, counter­claim or set­off could not be pleaded in

other suits.   As per the recommendation of the Law

Commission of India, to avoid multiplicity of proceedings, the

counter­claim  by  way of Rule 6A  was inserted in the  Civil

Procedure Code. The statement of objects and reasons for

enacting the Code of Civil Procedure (Amendment) Act, 1976

(Act No.104 of 1976), were­

1) A litigant should get a fair trial in accordance with the accepted principles of natural justice.

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2) Every effort should be made to expedite the disposal of civil suits and  proceedings, so that justice may not be delayed;

3) The procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community who do  not  have the  means to engage  a  pleader to defend their cases.

13. Before we proceed further, we deem it appropriate to note that

any provision under the procedural law should not be

construed in such a way that it would leave the Court helpless

[refer to  Salem Advocate Bar Association Case  (supra)]. In

fact a wide discretion has been given to the civil court

regarding the procedural elements of a suit.   As held by this

Court, procedural law is not to be a tyrant but a servant, not

an obstruction but an aid to justice.  

14. Now we need to observe certain earlier judgments of this Court

which have dealt with Order VIII Rule 6A. In  Mahendra

Kumar and Anr.  v.  State Of  Madhya Pradesh and Ors.,

(1987) 3 SCC 265 [hereinafter referred to as ‘Mahendra Kumar

Case’],  where the  appeals  were  preferred against  concurrent

findings of the Courts below in dismissing the counter­claim as

barred  under  Section  14 of the Indian  Treasure Trove  Act,

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1878, this Court, while considering the scope of Rule 6A(1) of

Order VIII of the CPC, has held that on the face of it, Rule 6A(1)

does not bar the filing of a counter­claim by the defendant after

he had filed the written statement. As the cause of action for

the counter­claim had arisen before the  filing of the written

statement, the counter­claim was held to be maintainable. This

Court further observed that under Article 113 of the Limitation

Act, 1963, the period of limitation is three years from the date

of the right to sue accrues, when the period of limitation is not

provided elsewhere in the Schedule.  As the counter­claim was

filed within three years from the date of accrual of the right to

sue, this Court held that the learned District Judge and the

High Court were wrong in dismissing the counter­claim. The

issue concerning applicability of limitation period for filing the

counter­claim was also discussed in Jag Mohan Chawla And

Another v. Dera Radha Swami Satsang & Ors.,  (1996) 4

SCC 699  and  Shanti Rani Das Dewanjee (Smt.) v. Dinesh

Chandra Day (Dead) by LRs., (1997) 8 SCC 174.   

15. In the case of Vijay Prakash Jarath v. Tej Prakash Jarath,

(2016)  11  SCC 800, this  Court  directed  the  Court  below  to

entertain the counter­claim which  was filed 2½ years after

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framing of issues, as the evidence was still pending and this

Court felt that no prejudice would be caused to the plaintiff.

However, in the case of  Bollepanda P. Poonacha & Anr. v.

K.M. Madapa,  (2008) 13 SCC 179 [hereinafter referred as

‘Bollepanda Poonacha Case’], this  Court  while referring to

Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC

350, discouraged the belated filing of counter­claims. Further,

the Court elucidated on the serious harm caused by allowing

such delayed filing. In  any  case, in  Bollepanda Poonacha

Case (supra), the Court could not expound any further as the

counter­claim was rejected on the basis that the cause of

action had arisen after the filing of the written statement.

16. The time limitation for filing of the counter­claim, is not

explicitly provided by the Legislature, rather only limitation as

to the accrual of the cause of action is provided. As noted in

the above precedents, further complications stem from the fact

that there is a possibility of amending the written statement.

However, we can state that the right to file a counter­claim in a

suit is explicitly limited by the embargo provided for the

accrual of the cause of action under Order VIII Rule 6A. Having

said so, this does not mean that counter­claim can be filed at

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any time after filing of the written statement. As counter­claim

is treated to be plaint, generally it needs to first of all be

compliant  with the limitation  provided  under the  Limitation

Act, 1963 as the time­barred suits cannot be entertained under

the guise of the counter­claim just because of the fact that the

cause of action arose as per the parameters of Order VIII Rule

6A.   

17. As discussed by  us in the  preceding  paragraphs, the  whole

purpose of the procedural law is to ensure that the legal

process is  made more effective in the process of delivering

substantial justice. Particularly, the purpose of introducing

Rule 6A  in Order  VIII  of the CPC  is to  avoid multiplicity  of

proceedings by driving the parties to file separate suit and see

that the dispute between the parties is decided finally. If the

provision is interpreted in such a way, to allow delayed filling of

the counter­claim, the provision itself becomes redundant and

the purpose for which the amendment is made will be defeated

and ultimately it leads to flagrant miscarriage of justice. At the

same time, there cannot be a rigid and hyper­technical

approach that the provision stipulates that the counter­claim

has to be filed along with the written statement and beyond

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that, the Court has no power. The Courts, taking into

consideration the reasons  stated in support  of the counter­

claim, should adopt a balanced approach keeping in mind the

object  behind  the  amendment  and  to  sub­serve the  ends of

justice. There cannot be any hard and fast rule to say that in a

particular time the counter­claim has to be filed, by curtailing

the discretion conferred on the Courts. The trial court has to

exercise the discretion judiciously and come to a definite

conclusion that by allowing the counter­claim, no prejudice is

caused to  the opposite  party,  process  is  not unduly delayed

and the same is in the best interest of justice and as per the

objects  sought to  be  achieved  through  the  amendment.  But

however, we are of the considered opinion that the defendant

cannot be permitted to file counter­claim after the issues are

framed and after the suit has proceeded substantially. It would

defeat the cause of justice and be detrimental to the principle

of speedy justice as enshrined in the objects and reasons for

the particular amendment to the CPC.

18. In this regard having clarified the law, we may note that the

Mahendra Kumar Case  (supra) needs to be understood and

restricted to the facts of that case. We may note that even if a

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counter­claim is filed within the limitation period, the trial

court has to exercise its discretion to balance between the right

to speedy trial and right to file counter­claim, so that the

substantive justice is not defeated. The discretion vested with

the trial court to ascertain the maintainability of the counter­

claim is limited by various considerations based on facts and

circumstances of each case. We may point out that there

cannot be a straitjacket  formula, rather there are numerous

factors which needs to be taken into consideration before

admitting counter­claim.   

19. We may note that any contrary  interpretation would  lead to

unnecessary curtailment of the right of a defendant to file

counter­claim. This Court needs to recognize the practical

difficulties faced by the litigants across the country.  Attaining

the  laudable goal  of  speedy  justice  itself  cannot be the only

end, rather  effective justice  wherein adequate  opportunity is

provided to all the parties, need to be recognized as well [refer

to Salem Advocate Bar Association Case (supra)].

20. We sum up our findings, that Order VIII Rule 6A of the CPC

does not put an embargo on filing the counter­claim after filing

the written statement, rather the restriction is only with

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respect to the accrual of the cause of action. Having said so,

this does not give absolute right to the defendant to  file the

counter­claim 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 counter­claim, which

is pegged till the issues are framed. The court in such cases

have the discretion to entertain filing of the counter­claim, 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.

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21. We answer the reference accordingly. The instant Special

Leave Petition may be placed before an appropriate Bench after

obtaining orders from the Hon’ble Chief Justice of India, for

considering the case on merits.  

.........................J. (N.V. RAMANA)

   .........................J.  (MOHAN M. SHANTANAGOUDAR)

........................J.  (AJAY RASTOGI)

NEW DELHI; November 19, 2019.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

S.L.P. (Civil) No. 23599 of 2018

Ashok Kumar Kalra …Petitioner  

Versus

Wing Cdr. Surendra Agnihotri & Ors. …Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. I have read the opinion given in this reference by my learned

Brothers. I agree with their conclusion that a Court may exercise

its discretion and permit the filing of a counter­claim after the

written statement, till the stage of framing of the issues of the

trial. However, in addition to this, I find that in exceptional

circumstances, the subsequent filing of a counter­claim may be

permitted till the stage of commencement of recording of the

evidence on behalf of the plaintiff. I deem it fit to state the

reasons for arriving at this conclusion through this opinion.

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2. This reference arises out of the order of this Court dated

10.09.2018 in SLP (C) No. 23599/2018 in Ashok Kumar Kalra

v.  Wing CDR Surendra  Agnihotri &  Ors., which states as

follows: “The papers to be placed before the Hon’ble Chief Justice of India for constitution of a three­judge Bench to  look  into  the effect  of  our previous  judgments as well as whether the language of Order VIII Rule 6A of the Code of Civil Procedure is mandatory in nature.”

Essentially, in light of the previous judgments of this Court,

the question referred to this Court is whether it is mandatory for

a counter­claim of the defendant to be filed along with the written

statement.

3. Counsel for both parties argued about the scope of Order

VIII  Rule  6A of the Code of  Civil  Procedure,  1908  [hereinafter

“CPC”]  and whether  a  counter­claim must  necessarily  be filed

along with the written statement. Since the arguments have been

elaborated upon by my learned Brother Judge, they are not

reproduced herein for the sake of brevity.  

4. To fully understand the expanse of the  legal questions in

this case, it  is essential to appreciate the context in which the

rules relating to counter­claims were introduced in the CPC. The

originally enacted CPC of 1908 did not provide a statutory right

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to file a counter­claim. At that time, Order VIII only pertained to

written statements and set­offs. Taking note of this omission, the

Law Commission of India, in its 27th  and 54th  Reports, had

recommended that express provisions on counter­claims should

be included in the  CPC  to  avoid  multiple  proceedings  and to

dispel ambiguity on whether counter­claims could be entertained

at  all.  These recommendations  were implemented through  the

Code of Civil Procedure (Amendment) Act, 1976, which

introduced the following rules to Order VIII of the CPC:

“Rule 6A. Counter­claim by defendant.— (1) A defendant in a suit may, in addition to his right of pleading a set­off under rule 6, set up, by way of counter­claim 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 counter­claim is in the nature of a claim for damages or not: Provided that such counter­claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter­claim shall have the same effect as a cross­suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter­claim. (3) The  plaintiff shall be at liberty to file a  written statement in answer to the counter­claim of the defendant within such period as may be fixed by the Court.

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

6B. Counter­claim to be stated.—Where any defendant seeks to rely upon any ground as supporting  a  right  of  counter­claim,  he  shall, in  his written statement, state specifically that he does so by way of counter­claim.

6C. Exclusion of counter­claim.—Where a defendant sets up a counter­claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter­claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter­claim, apply to the Court for an order that such counter­claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.

6D. Effect of discontinuance of suit.—If in any case in which the defendant sets up a counter­claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter­claim may nevertheless be proceeded with.

6E. Default of plaintiff to reply to counter­claim.— If the plaintiff makes default in putting in a reply to the counter­claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter­claim made  against  him,  or  make  such order in relation to the counter­claim as it thinks fit.

6F. Relief to defendant where counter­claim succeeds.—Where in any suit a set­off or counter­ claim is established as a defence against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

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6G. Rules relating to written statement to apply— The rules relating to a written statement by a defendant shall  apply to a written statement filed  in answer to a counter­claim.”

5. For the first time, through the introduction of Rules 6A­6G

to Order VIII, an explicit right of filing a counter­claim was

accorded to the defendant, and rules governing the same were

laid down. In this scheme, Rule 6A(1) is the cornerstone

provision. It specifically grants the right of filing a counter­claim.

In addition to this, it also places a categorical limitation on the

accrual of the cause of action for a counter­claim. This is in the

form of the requirement that the cause of action pertaining to the

counter­claim must arise either before  or after the filing of the

suit, but before the defendant has delivered his defence (i.e.

before the filing of the written statement), or before the expiry of

the time period for delivering such defence.  

Further, under Rule 6A(2), a counter­claim is stated to have

the same effect as the plaint in a cross­suit, so as to enable the

Court to pronounce a final judgment on the original claim as well

as the counter­claim in the same suit itself. Thus, it is evident

that Rule 6A has been carefully designed to meet the purpose of

avoiding multiplicity of proceedings.

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6. It  is clear that Rule 6A(1) only places a  limitation on the

time within which the cause of action for a counter­claim must

arise. Besides this limitation, there is no explicit guidance in Rule

6A(1) as to the time within which the counter­claim itself must be

filed. In this respect, Rule 6A(4) provides that a counter­claim is

governed by the rules applicable to plaints. It is well­established

that  a  plaint  must  be  presented  within the  period  prescribed

under the Limitation Act, 1963 [hereinafter “the Limitation Act”].

For counter­claims as well, the period within which they must be

filed can be inferred from Section 3(2)(b)(ii) of the Limitation Act,

1963, which states thus:

“(2) For the purposes of this Act,­­ (b)  any claim by way of a set off  or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted— (ii) in the case of a counter claim, on the date on which the counter claim is made in court;”  

(emphasis supplied)

This provision mandates that in order to determine the

limitation period applicable to a counter­claim, it must be treated

as a separate suit, which is deemed to have been instituted on

the date on which it is made in Court. Thus, evidently, in

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consonance  with the provisions of  Order  VIII  Rule 6A(4), the

Limitation Act also treats a counter­claim like a plaint. This

means that much like a plaint, the limitation for filing a counter­

claim also depends on the nature of the claim and is accordingly

governed by the period of limitation stipulated in the Limitation

Act.

7. From the  foregoing discussion,  it is  clear that  a counter­

claim can be filed  if two conditions are met:  first, its cause of

action complies with Order VIII Rule 6A(1); and second, it is filed

within the period specified under the Limitation Act. Clearly, by

itself, Rule 6A does not specifically require that a counter­claim

has to be filed along with the written statement. In the absence of

a particular mandate under this Rule, it is necessary to look to

other provisions of the CPC to determine whether a counter­claim

can be filed after a written statement.  

8. It would be appropriate to begin with a reference to Order

VIII Rule 9, which states thus:

 “9. Subsequent pleadings.—No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter­claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement  or additional

8

written  statement from any  of the  parties  and  fix  a time of not more than thirty days for presenting the same.”  

(emphasis supplied)

According to this Rule, after the filing of the written

statement, it is open to plead a defence to a set­off or counter­

claim without the leave of the Court. However, any other pleading

sought to be filed after the written statement requires the leave of

the  Court.  The Rule  also  vests the  Court  with a  discretion  to

allow filing of a written statement or additional written statement

within a period not exceeding thirty days.

A plain reading of Order VIII Rule 9 makes it clear that the

Court has the discretion to allow any subsequent pleading upon

such terms as it thinks fit. It is important to appreciate here that

such subsequent pleading or additional written statement may

include a counter­claim. This is because Rule 9 does not create a

bar on the nature of claims that can be raised as subsequent

pleadings. As long as the Court considers that it would be proper

to allow a counter­claim by way of a subsequent pleading, it is

possible to file a counter­claim after filing the written statement.  

In addition to this, it is also possible to introduce a belated

counter­claim by way of an amendment to the original written

9

statement under Order VI Rule 17, CPC. However, as is the case

with Order VIII Rule 9, the filing of such a counter­claim through

an amended written statement is subject to the leave of the

Court, and not accorded to the defendant as a matter of right.  

9. In this regard, it would be relevant to note the observations

of this Court in Ramesh Chand Ardawatiya v. Anil Panjwani,

(2003) 7 SCC 350:

“28. Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter­claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter­claim which in the light of Rule 1 read with Rule 6­A would be a counter­ claim  against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6­A. Secondly, a counter­claim may be preferred by way of amendment incorporated  subject to the leave  of the court  in a written statement already filed. Thirdly,  a counter­claim may  be filed  by  way  of a subsequent pleading under  Rule 9. In the latter two cases the counter­claim though referable to Rule 6­A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under Order 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under Order 8 Rule 9 CPC if sought to be placed on record by way of subsequent pleading.”

(emphasis supplied)

I fully agree with this proposition, and affirm on the basis of

the foregoing  discussion that the  Court  has the  discretion to

10

allow a counter­claim to be filed after the written statement in

exercise of its power under Order VIII Rule 9 and Order VI Rule

17 of the CPC.  

10. It  can also be gleaned from Order VIII  Rule 10 that it is

permissible to file a belated counter­claim under the scheme of

Order VIII, CPC:

“10. Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall  pronounce judgment against him,  or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.”

(emphasis supplied)

Under this Rule, the Court is afforded with the discretion to

pass any order that it deems fit in the event that a  written

statement  is  not filed within the prescribed statutory  limit.  To

determine whether this discretion extends to allowing the filing of

a belated counter­claim as well, it would be useful to appreciate

the scope of the discretion accorded under this provision.  

In  Salem Advocate  Bar  Association,  T.N.  v.  Union of

India, (2005) 6 SCC 344, this Court, while construing the nature

11

of  Order  VIII  Rule  1, relied  on the  broad  discretionary  power

under Order VIII Rule 10, and observed as follows:

“21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that where any party from whom a written statement is required under  Rule 1 or  Rule 9, fails to present the same within  the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit... In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of  the period of  90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted.   The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory.”  

(emphasis supplied)

Thus, under Order VIII Rule 10, the Court has the power to

condone the delay in filing of a written statement, if it deems it fit

in the facts and circumstances of the case. If it is so, there is no

reason as to why the delay in filing a counter­claim cannot be

condoned by the Court as well.

11. A conjoint and harmonious reading of Rules 6A, 9 and 10 of

Order VIII as well as Order VI Rule 17, CPC thus reveals that the

12

Court is vested with the discretion to allow the filing of a counter­

claim even after the filing of the written statement, as long as the

same is within the limitation prescribed under the Limitation Act,

1963. In this regard, I agree with the propositions laid down in

the decisions discussed below.

In Mahendra Kumar v. State of Madhya Pradesh, (1987)

3 SCC 265, it was held that: “15. The next point that remains to be considered is whether  Rule  6­A(1)  of  Order  8 of the  Code of  Civil Procedure bars the filing of a counter­claim after the filing of a written statement. This point need not detain us long, for Rule 6­A(1) does not, on the face of it, bar the filing of a counter­claim by the defendant after he had filed the  written statement.  What is laid down under Rule 6­A(1) is that a counter­claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence  or  before the time limited for  delivering  his defence has expired, whether such counter­claim is in the nature of  a claim  for damages or not.  The High Court, in our opinion, has misread and misunderstood the provision of Rule 6­A(1) in  holding that as the appellants had filed the counter­claim after the filing of the written statement, the counter­claim was not maintainable…Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere  in  the Schedule. It is  not  disputed that  a counter­claim, which is treated as a suit under Section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the right to sue.”  

(emphasis supplied)

13

In  Shanti Rani Das Dewanjee  v.  Dinesh Chandra Day,

(1997) 8 SCC 174, it was held that the right to file a counter­

claim is referable to the date of accrual of the cause of action: “2. In our view, the impugned decision does not warrant interference. Such question  was specifically raised before this Court in Mahendra Kumar v. State of M.P. [(1987) 3 SCC 265] It has been held by this Court that right to file a counter­claim under Order VIII Rule 6­A of the Code of Civil Procedure is referable to the date of accrual of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued up to the date of filing written statement or extended date of filing written statement,  such counter­claim can be filed even after filing the written statement. The said Civil Case No. 248 of 1982, in which the application under Order VIII Rule 6­A has been filed by the defendant­ respondents was instituted on 15­7­1982 and the application under Order VIII Rule 6­A was presented on  22­6­1985. It cannot be held that the cause of action for the suit or counter­claim was ex facie barred by limitation under the Limitation Act”

(emphasis supplied)

I am unable to persuade myself to arrive at a different

conclusion than the one found in the aforementioned judgments.  

12. It was argued by Counsel for the Respondent that Order VIII

Rule 6A(1) requires that the cause of action for a counter­claim

should arise before the filing of the written statement, and hence

it is logical that the counter­claim, or the grounds upon which it

is based, should also find a mention in the written statement. To

14

support this, he relied on Order VIII Rule 6B, which states that a

defendant seeking to rely upon any ground in support of his right

of counter­claim, shall specifically state in his written statement

that he does so by way of a counter­claim.

I  do not  agree with this  view for  two reasons.  First, it is

possible that at the time of filing the written statement, the

defendant is  unaware  of the facts  giving rise to the  cause  of

action for his counter­claim. For instance, in a suit for

declaration of title brought by the plaintiff against his sister, the

defendant may be unaware that the plaintiff has wrongfully

detained her belongings kept at the said property, at the time of

filing her written statement. In such a situation, even though the

cause of  action  for  her  counter­claim of  wrongful  detention of

belongings may have arisen  before  the filing of the written

statement, it may not have been possible for her to raise the said

counter­claim. Similarly,  limited access to  justice, especially  in

rural areas, shaped by the socio­economic context of parties, may

compel the filing of belated counter­claims.

Second, a perusal of Order VIII Rule 6B suggests that it is

only limited to cases where the counter­claim is made along with

15

the written statement. In instances where a belated counter­

claim is raised by way of an amendment to the written statement,

or as a subsequent pleading, Rule 6B cannot be said to be

applicable. This is because in any such case, if the Court relies

on a technical interpretation of Rule 6B to disallow the filing of a

belated counter­claim, the defendant would still be free to file a

fresh suit for such a claim. He may, in such matters, after filing

the separate suit, request the Court to club the suits or to hear

them simultaneously. This may further delay the process of

adjudication and would certainly not help the plaintiff in the first

suit,  who may have opposed the  filing of the belated counter­

claim. Such multiplicity of  proceedings goes against the object

with which Rules 6A­6G were introduced to the CPC. Thus, the

provisions under Order VIII should not be read in isolation, but

in a conjoint and harmonious manner, and Rule 6B cannot be

read as a limitation on the Court’s discretion to permit the filing

of a belated counter­claim. Therefore, I do not find force in the

argument raised by Counsel for Respondent.  

13. Further, the contention that the limitation on filing of set­

offs under Order VIII Rule 6 should be read into Rule 6A(1) is

untenable. The nature of a set­off and a counter­claim is

16

different. For instance, a set­off must necessarily be of the same

nature as the claim of the plaintiff  and arise out of the same

transaction. These requirements do not hold for counter­claims,

which may be related to “any right or claim in respect of a cause

of action accruing to the defendant against the plaintiff” as stated

in Order VIII Rule 6A(1). Further, in case of set­offs, there is no

provision akin to Order VIII Rule 6A(4), which provides that a set­

off must be treated as a plaint. Thus, it appears that the

Legislature  has  consciously  considered  it fit to  omit  a  specific

time limit for filing of counter­claims in Rule 6A. In such a

scenario, a limitation cannot be read into this Rule.    

14. Lastly, as regards the Respondent’s reliance on Order VIII

Rule 1A, which requires the documents in support of a counter­

claim to be presented along with the written statement itself, I am

of the view that this requirement should not be read as being

mandatory. Rule 1A(2) itself provides instances where such

documents are not in the possession of the defendant, by

requiring  him to specify the person in whose possession the

documents rest.  Accordingly, Rule 1A(3)  (as amended in 2002)

also provides that these documents may be produced later, with

the leave of the Court. The discretion accorded in these

17

provisions goes on to support the conclusion that it is possible to

file  a counter­claim even after the written statement,  with  the

leave of the Court. 15. Finally, then, the scope of discretion vested with the Court

under Order VI Rule 17 and Order VIII Rule 9 to allow for belated

counter­claims remains to be examined. It must be determined

when it may be proper for the Court to refuse a belated counter­

claim, in spite of it being permissible within the scheme of Order

VIII Rule 6A and the Limitation Act, 1963.  

16. In several cases, it is possible that the period of limitation

for filing of counter­claims may extend up to a long period of time

and prolong the trial. For instance, in a suit for declaration of

title, the defendant may bring a counter­claim for possession of

the immovable property based on previous possession. In terms

of Order VIII Rule 6A, such a claim would be admissible as long

as the dispossession had occurred before the filing of the written

statement, or before the expiry of the time provided for filing of

the written statement. However, as per the Limitation Act, such a

claim would be valid even if it were brought within twelve years

from the date of the defendant’s dispossession.

18

In such a situation, it is possible that by the time the

counter­claim  is  brought, the issues in the  original suit  have

already been framed, the evidence led, arguments made, and the

judgment reserved. Allowing a counter­claim to be filed at this

stage would effectively result in a re­trial of the suit, since the

Court would have to frame new issues, both parties would have

to lead evidence, and only then would the judgment be

pronounced. If this is  permitted, the  very  purpose  of  allowing

counter­claims,  i.e.  avoiding multiplicity  of litigation,  would be

frustrated.   

17. It is well­settled that procedural rules should not be

interpreted so as to defeat justice, rather than furthering it. This

is  because  procedural law is not  meant to serve as a tyrant

against justice, but to act as a lubricant in its administration.

Thus, when Courts set out to do justice, they should not lose

sight of the end goal amidst technicalities. In some cases, this

means that rules that have traditionally been treated as

mandatory, may be moulded so that their object and substantive

justice is not obstructed. It would be apposite to remember that

equity and justice should be the foremost considerations while

construing procedural rules, without nullifying the object of the

19

Legislature in totality. Thus, rules under the Limitation Act which

may allow for filing of a belated counter­claim up to a long period

of time, should not be used to defeat the ends of justice.  18. Keeping this in mind, in  Ramesh Chand Ardawatiya

(supra), this Court considered the scope of discretion in allowing

for belated counter­claims. It is useful to refer to the observations

made by the Court in the context of Order VIII Rule 6A (as it was

in 1976):

“28. …The purpose of the provision enabling filing of a counter­claim is to avoid multiplicity of judicial proceedings and save upon the court’s time as also to exclude the inconvenience to the parties by enabling claims and counter­claims, that is, all disputes between the same parties being decided in the course of the same proceedings.  If the consequence of permitting a counter­claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the court, the court would be justified in exercising its discretion not in favour of permitting a belated counter­claim.  The  framers  of the law never intended the pleading by way of counter­claim being utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counter­claim not contained in the  original  written statement  may be  refused  to  be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced… A refusal on the part of the court to entertain a belated counter­claim may not prejudice the defendant because in spite of the

20

counter­claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter­claim.”  

(emphasis supplied)

To  ensure that the  objective  of introducing the  statutory

amendments with respect to counter­claims was not defeated, it

was rightly held that a belated counter­claim raised by way of an

amendment to the written statement (under Order VI Rule 17) or

as a subsequent pleading (under Order VIII Rule 9) should not be

allowed after the framing of issues and commencement of trial.  

19. Later,  in  Rohit Singh  v.  State of Bihar, (2006) 12 SCC

734, this Court read in a similar limitation on the filing of belated

counter­claims: “18. … A counterclaim, no doubt, could be filed even after the written statement is filed,  but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed.  Therefore, the entertaining of the so­called counterclaim of Defendants 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction. On that short ground the so­called counterclaim, filed by Defendants 3 to 17 has to be held to be not maintainable.”  

(emphasis supplied)

It is crucial to note that even though the Court held that a

counter­claim can be filed after the filing of a written statement,

it must necessarily be filed before the issues are framed and the

evidence is closed. In fact,  since the counter­claim in the said

21

matter was filed at the stage where the judgment was reserved,

the Court went as far as saying that entertaining such a claim

was illegal and without jurisdiction.  

20. The decision of this Court in  Bollepanda P. Poonacha v.

K. M. Madapa, (2008) 13 SCC 179  is also significant in this

regard. Referring to  Ramesh Chand Ardawatiya  (supra), it

acknowledged that belated counter­claims were to be

discouraged, and called upon the Court to consider questions of

serious injustice and irreparable loss while permitting any such

claim. However, in  Bollepanda  (supra), the Court did not have

an occasion to expound further on this proposition, as the

counter­claim had been rejected on the basis that its cause of

action had arisen after the filing of the written statement.  

21. It was in  Gayathri Women’s Welfare Association  v.

Gowramma, (2011) 2 SCC 330, that this Court once again had

the occasion to look into the filing of a belated counter­claim. In

this case, filing of the initial counter­claim was not in challenge.

Instead, the Court was considering the effect of an amendment to

an existing counter­claim. While the Trial Court had refused to

allow such an amendment, the High Court had granted the same.

22

Reiterating the concerns noted in  Ramesh Chand  Ardawatiya

(supra), this Court held as follows: “44. The matter herein symbolises the concern highlighted by this Court in Ramesh Chand [(2003) 7 SCC 350]. Permitting a counterclaim at this stage would be to reopen a decree which has been granted in favour of the appellants by the trial court. The respondents have failed to establish any factual or legal basis for modification/nullifying the decree of the trial court.”

The Court also relied on Rohit Singh (supra) and observed

that a counter­claim cannot be filed after the framing of issues.

22. In  Vijay Prakash Jarath  v.  Tej Prakash Jarath, (2016)

11 SCC 800, this Court further refined the limitation in  Rohit

Singh  (supra) that counter­claims cannot be raised after the

issues are framed and the evidence is closed. In the said case,

even though the issues had been framed, and the case was in the

early  stages of recording of the  plaintiff’s  evidence,  a counter­

claim filed at that point was allowed, as no prejudice was caused

to the plaintiff.  

23. The above discussion lends support to the conclusion that

even though Rule 6A permits the filing of a counter­claim after

the  written statement, the  Court  has the  discretion to refuse

such filing if it is done at a highly belated stage. However, in my

23

considered opinion, to ensure speedy disposal of suits, propriety

requires that  such discretion should only  be  exercised  till the

framing of issues for trial. Allowing counter­claims beyond this

stage  would  not  only  prolong  the trial,  but  also  prejudice the

rights that may get vested with the plaintiff over the course of

time.  At the same time, in exceptional circumstances, to prevent

multiplicity of proceedings and a situation of effective re­trial, the

Court may entertain a counter­claim even after  the framing of

issues, so long as the Court has not started recording the

evidence. This is because there is no significant development in

the legal proceedings during the intervening period between

framing of issues and commencement of recording of evidence. If

a counter­claim is brought during such period, a new issue can

still be framed  by the  Court, if  needed,  and  evidence can  be

recorded accordingly, without seriously prejudicing the rights of

either party to the suit.  

At this juncture, I would like to address the observation in

Rohit Singh  (supra) that a counter­claim, if filed after the

framing of the issues and closing of the evidence, would be illegal

and  without jurisdiction. In  my opinion, this is  not  a correct

24

statement of law, as the filing of counter­claims after the

commencement of recording of evidence is not illegal  per se.

However, I hasten to add that permitting such a counter­claim

would be improper, as the Court’s discretion has to be exercised

wisely and pragmatically.  

24. There are several considerations that must be borne in

mind while allowing the filing of a belated counter­claim.  First,

the Court must consider that no injustice or irreparable loss is

being caused to the defendant due to a refusal to entertain the

counter­claim, or to the plaintiff by allowing the same. Of course,

as the defendant would have the option to pursue his cause of

action in a separate suit, the question of prejudice to the

defendant would ordinarily not arise.  Second, the interest of

justice must be given utmost importance and procedure should

not outweigh substantive justice. Third, the specific objectives of

reducing multiplicity of litigation and ensuring speedy trials

underlying the provisions for counter­claims, must be accorded

due consideration.  

25. Having considered the previous judgments of this Court on

counter­claims, the language employed in the rules related

25

thereto,  as well  as the  intention of the Legislature, I  conclude

that it is not mandatory for a counter­claim to be filed along with

the written statement. The Court, in its discretion, may allow a

counter­claim to be filed after the filing of the written statement,

in view of the considerations mentioned in the preceding

paragraph. However, propriety requires that such discretion

should ordinarily  be exercised to allow the  filing of  a counter­

claim till the framing of issues for trial. To this extent, I concur

with the conclusion reached by my learned Brothers. However,

for the reasons stated above, I am of the view that in exceptional

circumstances, a counter­claim may be permitted to be filed after

a written statement till the stage of commencement of recording

of the evidence on behalf of the plaintiff.

26. The reference is answered accordingly.  

............................................J. (Mohan M. Shantanagoudar)

New Delhi; November 19, 2019.