Supreme Court: 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

The Supreme Court in the case Mahesh Govindji Trivedi vs Bakul Maganlal Vyas observed and stated 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 the case.

In the present case, the counter-claim in question was filed nearly 13 years after filing of the written statement. The Single Judge of the Bombay High Court was 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. Later, the Division bench of the High Court later set aside the said order and remitted the matter for consideration afresh and on the ground that the plaintiffs were not afforded adequate opportunity for filing reply and to contest the said notice of motion.

Before the Apex Court, the issue was raised 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 of the counter-claim on record?

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

The Court 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, the court is 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, on 07.09.2018, the counter claim was filled and until that date, issues had not been framed in the suit…

The court is 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 of the belatedly filed counter-claim on record, which was indeed being filed before framing of issues.

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

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