Counter-Claim May Be Accepted After Delivery Of Defence, But Only Before Issues Are Settled: Orissa HC
The Orissa High Court dismissed a petition challenging the rejection of a counter-claim under Order VII Rule 11 of the CPC while observing that a counter-claim may be accepted after delivery of the defence, but before the issues are settled.
The Court explained that a counter-claim filed along with the additional written statement can not be accepted in view of Order VIII Rule 6-A CPC when the cause of action for filing the counter-claim arises after the amendment of the plaint.
A Single Bench of Justice K.R. Mohapatra observed, “A counter-claim may be accepted after delivery of defence, but before the issues are settled. In the instant case, the issues have already been settled. Only because some additional issues may be required to be framed, that does not ipso facto give a right to the Defendants to file a counter-claim.”
Advocate Prasanna Kumar Rath appeared for the petitioners, while Advocate Sourav Suman Bhuyan represented the opposite parties.
The petitioners assailed the order of the trial court rejecting the counter-claim filed by the petitioners under Order VII Rule 11 of the CPC. The said counter-claim was rejected on the ground that the defects pointed out by Stamp Reporter in the counter-claim were not removed erroneously applying the provision under Order VII Rule 11 of the CPC and the suit was posted for settlement of issues.
After the settlement of issues, the respondents amended the plaint. The petitioners then filed an additional written statement along with a counter-claim. While accepting the additional written statement filed by them, the trial Court refused to accept the counter-claim applying the principles under Order VIII Rule 6-A of the CPC.
The petitioners argued that the order of the trial court was not sustainable as the provision under Order VII Rule 11 of the CPC was not applicable to a counter-claim in view of the specific provision under Order VIII Rule 6-C of the CPC.
The High Court explained that although the trial Court applied a wrong provision under Order VII Rule 11 of the CPC to reject the counter-claim, it did not take away the effect of the order that the earlier counter-claim filed by the petitioners was not accepted for non-removal of the defects pointed out by Stamp Reporter.
“Order VIII Rule 6-A CPC does not contemplate acceptance of a counter-claim along with additional written statement (subsequent pleading). A counter-claim may only be accepted, if the cause of action for filing such counter-claim arises on or after filing of the suit, but, before delivering of the defence by the Defendants,” the Bench noted.
Consequently, the Court held, “In view of the above, this Court finds that learned trial Court has committed no error in accepting the counter claim.”
Accordingly, the High Court dismissed the petition.
Cause Title: Kailash Bhoi (Dead) through LRs. v. Kailash Chandra Samal (Dead) through LRs.
Appearance:
Petitioners: Advocate Prasanna Kumar Rath
Opposite Parties: Advocates Sourav Suman Bhuyan and Bebekananda Bhuyan