There is no embargo on filing counter claim after filing written statement as per Order VIII Rule 6A, Code of Civil Procedure 1908

The Supreme Court has held that a Court can exercise its discretion and permit the filing of a counterclaim after the written statement till the stages of framing of issues of the trial.

 

It was held in the matter of Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri & Ors. (SLP(C) 23599 of 2018), decided on 19.11.2019.

 

Challenge

 

Whether language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature? In other words, whether Order VIII Rule 6A of the CPC mandates an embargo on filing the counterclaim after filing the written statement?

 

Held

 

Order VIII Rule 6A deals with counterclaim by defendant, according to which 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 filing of the suit but before the defendant has delivered his defense or before the time prescribed for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not.

 

It was then observed by the Apex Court that 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. It was further held that the counter claim can be entertained till the issues are framed in the suit. The Court further cautioned, 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 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:

 

  1. Period of delay.
  2. Prescribed limitation period for the cause of action pleaded.
  • Reason for the delay.
  1. Defendant’s assertion of his right.
  2. Similarity of cause of action between the main suit and the counterclaim.
  3. Cost of fresh litigation.
  • Injustice and abuse of process.
  • Prejudice to the opposite party.
  1. and, facts and circumstances of each case.

 

It was also held that that normally, counter claim will not be entertained after the issues have been framed in the suit but filing of counterclaims after the commencement of recording of evidence is not illegal per se.