Order VIII Rule 6A CPC: No Embargo On Filing Counter-Claim After Filing Written Statement: SC
Having said so, 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.
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The three judge bench comprising of Justice NV Ramana, Justice Mohan M. Shanthanagoudar and Justice Ajay Rastogi answered the issue referred to it: Whether language of Order VIII Rule 6A of the Civil Procedure Code is mandatory in nature.
The bench held that Order VIII Rule 6A of the CPC does not pose an embargo on filing the counter-claim after filing the written statement.
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 defence 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.
Answering the reference (Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri), the bench held as follows:
The restriction is only with respect to the accrual of the cause of action. Having said so, 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 has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, 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 counter-claim. 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.
In a separate concurring opinion, Justice Shanthanagoudar said that, in exceptional circumstances, the subsequent filing of a counter-claim may be permitted till the stage of commencement of recording of the evidence on behalf of the plaintiff.
(will be updated)
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