Order 8 Rule 6-A CPC Not A Bar For Taking On Record Delayed Counter-Claim Filed Before Framing Of Issues: SC

The bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose has observed that the requirements of Order VIII Rule 6-A CPC or Rule 95 of the Bombay High Court (Original Side) Rules don't operate as a bar for taking the belatedly filed counter-claim on record, which was filed before framing of issues.

The Court observed that "procedural law should not be construed in such a way that it would leave court helpless; and that a wide discretion had been given to the Civil Court regarding the procedural elements of a suit. Having said so, this Court observed that a counter-claim is designed to avoid multiplicity of proceedings; that time limit for filing a counter-claim is not explicitly provided for but there is limitation as to the accrual of the cause of action. However, the majority opinion has been that the defendant cannot be permitted to file counter-claim after the issues are framed and the suit has proceeded substantially."

In this case, the counter-claim in question was filed 13 years after filing of the written Statement and the Single Judge of the High Court 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. The Division Bench of the High Court has, however, set aside the order so passed by the Single Judge and has remitted the matter for consideration afresh, essentially on the ground that the plaintiffs were not afforded adequate opportunity to file reply and to contest the said notice of motion.

The Issue involved in the present case is-

"whether the Division Bench of the High Court has been justified in interfering with the order passed by the Single Judge for taking the counter-claim on record".

Senior Advocate Shyam Divan appearing for the Appellant submitted that in the impugned order, the Division Bench of the High Court has proceeded in a rather cursory manner in as much as much as no reason whatsoever is assigned for setting aside the considered order passed by the Single Judge. He further submitted that the order of Single Judge was not suffering from any infirmity so as to warrant any interference.

Per contra, Senior Advocate Shekhar Naphade appearing for the Respondent submitted that the order of the Single Judge had been a cryptic and non-speaking order and that the Single Judge failed to consider the law applicable to the case including Rule 95 of the Bombay High Court (Original Side) Rules.

The Court, referring to Order VIII Rule 6-A of the Code of Civil Procedure, 1908 and Rule 95 of the Bombay High Court (Original Side) Rules, observed that in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Ors.: (2020) 2 SCC 394 it was held that the counter-claim is designed to avoid multiplicity of proceedings and the defendant cannot be permitted to file the Counter-claim after the issues are framed and the suit has proceeded substantially.

The Court further observed that "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, we are 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, the counter-claim was filed on 07.09.2018 and until that date, issues had not been framed in the suit.....we are 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 the belatedly filed counter-claim on record, which was indeed filed before framing of issues."

Accordingly, the bench allowed the appeal and restored the order passed by the Single Judge allowing the Counter-Claim to be taken on record.

Cause Title- MAHESH GOVINDJI TRIVEDI Vs. BAKUL MAGANLAL VYAS & ORS.

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