Counter-claim must necessarily be directed against the plaintiff; though incidental relief against a co-defendant may be permissible, a counter-claim solely against co-defendant is not maintainable. Specific performance of an agreement sought by defendant against a co-defendant (represented through Nazir) is impermissible.

Civil Procedure Code, 1908 — Order VIII Rule 6A — Counter-claim

• Counter-claim must necessarily be directed against the plaintiff; though incidental relief against a co-defendant may be permissible, a counter-claim solely against co-defendant is not maintainable.

• Specific performance of an agreement sought by defendant against a co-defendant (represented through Nazir) is impermissible.

• Rohit Singh v. State of Bihar, (2006) 12 SCC 734 and Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, (2023) 19 SCC 175, reaffirmed.

Civil Procedure Code, 1908 — Order VIII Rule 6A; Limitation Act, 1963 — Article 54

• Counter-claim, though treated as a plaint, is subject to limitation law.

• Agreement to sell dated 21.10.2011 — specific performance sought in 2021 — hopelessly barred by limitation.

• Cause of action arose at least when plaintiff instituted suit in 2012; counter-claim filed nine years thereafter cannot be entertained.

Civil Procedure Code, 1908 — Counter-claim — Stage for filing

• No absolute right to file counter-claim after written statement; outer limit is till framing of issues.

• Counter-claim filed after issues framed (12.02.2019) and after substantial progress in trial, cannot be entertained.

• Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri, (2020) 2 SCC 394, applied.

Civil Procedure Code, 1908 — Order XXII Rule 4A

• Appointment of Nazir to represent deceased defendant does not extend or revive right to file counter-claim.

• Cause of action for counter-claim cannot be said to arise only upon such substitution

Constitution of India — Article 227 — Supervisory Jurisdiction of High Court

• Interference with Trial Court’s order rejecting counter-claim unjustified when no jurisdictional error is shown.

• High Court erred in reversing Trial Court’s well-reasoned order.

Held

• High Court’s order permitting defendant no.2 to file counter-claim set aside.

• Trial Court’s rejection of counter-claim restored.

• Appeal allowed; no costs.

2025 INSC 1109

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025

ARISING OUT OF SLP (C) NO. 5635 OF 2023

RAJUL MANOJ SHAH ALIAS RAJESHWARI

RASIKLAL SHETH ...APPELLANT(S)

VERSUS

KIRANBHAI SHAKRABHAI PATEL & ANR. …RESPONDENT(S)

J U D G M E N T

PAMIDIGHANTAM SRI NARASIMHA, J.

1. Leave granted.

2. Present appeal is against the judgment and order of the High

Court of Gujarat1 against the order passed by the City Civil Court,

Ahmedabad dismissing the interlocutory application2 filed by

respondent no.1/defendant no.2 for amending the written

statement and for filing a counter claim in a suit for declaration

and injunction filed by the appellant.

1 In Special Civil Application No. 12701 of 2021 dated 16.01.2023. 2 Exhibit-107/108 dated 05.08.2021 in O.S. No.167 of 2012.

2

3. Facts: Short facts leading to the filing of the appeal are that

the appellant, in 2012, instituted an original suit alleging that the

property in question, a bungalow in a cooperative housing society

situated near Stadium Char Rasta in Ahmedabad, belongs to her

father and upon his demise, the said property came to be owned

by her and by her brother jointly. However, upon the demise of her

brother, the property was jointly owned by the appellant and her

sister-in-law/defendant no. 1. In January, 2012, when the

appellant came to know that her sister-in-law has agreed to sell a

portion of the undivided share of the joint family property in favour

of respondent no.1 /defendant No.2, the appellant filed the suit for

a declaration that her sister-in-law, defendant no.1 has no right to

transfer or deal with the property without her consent and to

declare the agreement to sell dated 21.10.2011 in favour of

defendant no.2, as null and void.

4. On 12.10.2013, the original defendant no. 1 passed away

pending disposal of the suit. Thereafter, on 23.07.2017, the

appellant filed an application before the Trial Court declaring the

factum of defendant no.1’s death and praying for her deletion from

array of parties. Trial Court vide order dated 24.10.2019 allowed

appellant’s application for deletion of defendant no.1. Meanwhile,

3

on 10.10.2019, defendant no. 2 moved an application before the

Trial Court praying for substitution of the original defendant no. 1

with a court appointed officer under Order XXII Rule 4A of Code of

Civil Procedure, 19083 which came to be dismissed vide order

dated 15.11.2019.

5. Aggrieved against the orders dated 24.10.2019 and

15.11.2019, defendant no. 2 moved a Special Civil Application

before the High Court. On 10.02.2020, the High Court passed an

order based on consent of both the parties, thereby quashing

orders dated 24.10.2019 and 15.11.2019. Consequently, High

Court substituted and appointed the court official – Nazir of the

City Civil Court – respondent no. 2 as defendant no.1. Thereafter,

the appellant also filed an amended plaint on 04.03.2020.

6. Proceedings leading to the filing of the present appeal

commenced when defendant no. 2, on 26.07.2021 moved an

application seeking to amend the written statement by adding a

counter-claim, praying for, a) to direct the Nazir/respondent no.2

to accept remaining consideration and execute a sale deed for the

undivided share in furtherance of the agreement to sell dated

3 Hereinafter, CPC.

4

21.10.2011, and b) to partition the suit property as per Partition

Act, 1893.

7. The Trial Court by its order dated 05.08.2021 dismissed the

application by holding that defendant no. 2 has filed the

application after a long time and that, it is abuse of the process to

file such application after issues were framed, way back on

12.02.2019. Trial Court also observed that the defendant cannot

seek specific performance of the agreement of sale dated

21.10.2011 against deceased defendant no. 1, as represented by a

court officer, that too in a suit filed by the plaintiff. Following the

decisions of this Court, the Trial Court held that a counter claim

is not maintainable against the co-defendant. Respondent No. 1,

defendant no. 2 challenged this order in Special Civil Application

under Articles 226/227 and the High Court, by the order

impugned before us allowed the petition.

8. The High Court allowed the application of defendant no. 2

and permitted him to file his counter-claim. The relevant portion

of the order impugned is as follows;

“13.13. In view of this Court, considering the aforesaid facts, the

prayers as prayed for by the petitioner herein are required to be

granted and the prayers as prayed for in application below Exh.

107 /108 could have been prayed for by the petitioner herein,

only after the Nazir of the City Civil Court as administrator of the

property in question would have been appointed. The Nazir came

to be appointed only by order dated 10.02.2020 by this Court in

Special Civil Application No. 21979 of 2019 and soon thereafter, 

5

the applications below Exh.107/108 came to be filed by the

petitioner herein. The cause of action can be said to have arisen

after the Issues came to be framed, and therefore, in the facts of

the present case, the petitioner could not have been non-suited

on the ground of delay.

13. 14. The trial Court has also come to the conclusion that the

petitioner herein has chosen to file counter-claim against the codefendant and the same is held to be not maintainable. It

appears that the reliefs have not been sought for by the

petitioner herein against the co-defendant, the same have been

sought for against the Nazir - court official of the City Civil Court,

as also against the respondent no.2 - original plaintiff. The

counter-claim is maintainable, in view of the fact that the same

is filed after the administrator- Nazir came to be appointed by

this Court vide order dated 10.02.2020, for the prayers as

referred above.

14. This Court by exercising supervisory jurisdiction under

Article 227 of the Constitution of India, is inclined to allow the

said applications below Exh. 107 /108 preferred by the

petitioner herein by quashing and setting aside the order dated

05.08.2021 passed below Exh.107/108 in Civil Suit No. 167 of

2012 by the City Civil Court, Ahmedabad.

15. In view of this Court, in the facts and circumstances of the

present case, the present petition are required to be allowed and

the same is allowed, accordingly, keeping it open for the

respondent herein to lead the evidence on the ground of

limitation and the same be decided by the Court below in

accordance with law. It is also kept open for the respective

parties to take all the contentions before the Court below, when

the matter is taken-up for hearing and other issues that may be

germane for adjudication of the dispute in question including the

issue of limitation.

The present petition stands allowed, accordingly.”

(emphasis supplied)

9. Aggrieved, the appellant approached this Court by filing the

present civil appeal. We have heard Mr. Ritin Rai, learned senior

counsel assisted by others, on behalf of the appellant. We have

also heard Mr. Pradhuman Gohil, learned counsel and others on

behalf of the respondent.

6

10. The two submissions made by Mr. Ritin Rai, learned senior

counsel are simple and straightforward. The first submission is

that a counter claim cannot be entertained after the issues are

formulated in the suit. For this purpose, he relied on the decision

of this Court in Ashok Kumar Kalra v. Wing CDR. Surendra

Agnihotri4. The second submission, as accepted by the Trial Court

as well, is that a counter claim cannot be made against a codefendant and for this purpose the decision of this Court in Rohit

Singh & Ors. v. State of Bihar5 is relied on.

11. Mr. Pradhuman Gohil, learned counsel appearing on behalf

of respondent no. 1/defendant no. 2, articulated his arguments

very well and interpreted Order VIII Rule 6A of CPC innovatively

and also relied on certain portions of the 27th Law Commission

Report.

12. Analysis: Before we take up the issue relating to legality and

propriety of entertaining an application for counter claim 9 years

after filing of the suit, particularly when issues were framed 3 years

before the said application and also the issue relating to the legality

of institution of a counter claim against a co-defendant, we will

touch upon the jurisdiction that the High Court was exercising.

4 (2020) 2 SCC 394.

5 (2006) 12 SCC 734. Hereinafter, “Rohit Singh”.

7

13. The appellant did in fact raise the plea of the High Court

entertaining a petition under Article 227 against the order passed

by the Trial Court but the same was rejected by supplying the

following reasoning after extracting the portion of the decision of

this Court in Kishore Kumar Khaitan & Anr. v. Praveen Kumar

Singh6 by observing that;

“13. 10. Considering the aforesaid ratio as laid down by the

Hon'ble Supreme Court, as referred above, while this Court is

conscious of the restriction while exercising the jurisdiction

under Article 227 of the Constitution of India, looking to the

facts of the present case, interference is called for, in view of

the fact that cause of action for seeking amendment and

counter-claim could be said to have arisen, after the issues

came to be framed by the trial Court on 12.02.2019.

Undisputedly, the aforesaid prayers as prayed for by the

petitioner herein, invoking Order-8 Rule-6(A) 1 and Order-6

Rule-17 of the Code of Civil Procedure 1908 seeking

amendment in plaint and for counter-claim by the present

petitioner, would normally be not granted, after the

commencement of trial and considering the fact that, it would

result in prolonging the suit proceedings, however, the same

depends upon facts and circumstances of the case. The

provisions of Order-6 Rule-17 and Order-8 Rule-6(A)1 of the

Code of Civil Procedure, also provide that same be allowed, if

the same are germane for determining the real controversy

between the parties. In facts of the present case, it cannot be

said that the petitioner· herein has placed on record the facts,

which are new to the suit proceedings, and therefore, prayers

as prayed for by the petitioner herein are required to be

considered and required to be granted.”

(emphasis supplied)

14. The above-referred para does not indicate how the

jurisdictional error has arisen for consideration. In any event of

6 AIR 2006 SC 1474

8

the matter, the relevant portion of facts, as found by the trial court

while rejecting the application for counter claim, which we are of

the opinion are correct in law as well as on fact, are extracted as

hereinbelow for ready reference;

“8. ………

Upon considering the aforesaid provision of C.P.C. Order-8,

Rules-6, when cause arises for counter claim for the

defendant, then counter-claim can be lodged by the defendant

against the plaintiff. In the present case, as per the details of

the counter-claim submitted by the defendant no.2, he has

demanded counter-claim against defendant no. 1 and he has

not prayed for any relief against the plaintiff. If the suit is filed

by the plaintiff, the defendant cannot file counter-claim

against the defendant in the said suit.

Further, upon conducting in depth study of the other details of

the counter-claim, it is proved that the relief of specific

performance sought by the defendant no.2 against the

defendant no.1 in this counter-claim, is the agreement to sale

which was executed by defendant no.1 in favor of defendant

no.2 and no dispute is raised by the defendant no. 1 in that

regard. However, the said agreement to sale was executed in

the year 2011 ie. 21/10/2011. The said counter-claim for

specific performance in that regard, was filed by the defendant

no.2 in this suit in the year 2021. In this regard, upon

considering provisions of Article-54 of the Limitation Act, the

relief of specific performance can be filed within three years

from the date of execution of agreement and if any condition is

fixed in the agreement, then three years from the date of the

condition and if any condition is not fixed, then the date from

which implementation of the agreement is denied or within

three years from the date cause arises. This is a legal

limitation. As per the provision of sub-rule-3 of Rule-6 of Order8 of C.P.C., the provisions applicable to claim are also

applicable to counter-claim. Accordingly, all the provisions of

Limitation Act can be applied to counter-claim. As per Article54 of the Limitation Act, the agreement to sale submitted in

this case and the representation made by Mr. Patel, Ld.

Advocate of the defendant no.2 by citing condition no.3 of the

agreement to sale and upon evaluating the same, duration of 

9

twelve months is fixed after receiving the title clear certificate

in condition. 3 of the agreement to sale. However, defendant

no.2 has stated that the said title clear certificate is not

received. The agreement to sale was executed in the year 2011

and the present plaintiff filed the suit to declare the said

agreement to sale as null and void, ie the plaintiff has

challenged the agreement to sale. Upon considering the said

circumstances and the fact that defendant no.2 is also a party

in this suit and the agreement to sale is challenged in the

knowledge of defendant no.2, then in such circumstances,

cause of the suit can be considered arisen as per provision of

Article-54 of the Limitation Act. Moreover, the responsibility to

prove the provision of ready and willingness as per section- 16

(c) of the Specific Relief Act, falls on defendant no.2. Since the

agreement to sale was executed in favor of defendant no.2 in

the year 2011, then it cannot be believed in general

circumstances that he would have waited for title clear

certificate even after suit was filed. Moreover, even after the

said suit was filed, defendant no.2 did not initiate proceeding

against defendant no. 1 for the implementation of the said

agreement while he was alive and no such pleading is made

in this revision application. The present counter-claim of

defendant no.2 is completely barred by the provision of

Limitation Act.

9. Moreover, considering the significant contention of this

case, the defendant no.2 has already filed his reply vide

Exhibit-35 against the plaint of the plaintiff. He has not

submitted any counter claim with the said reply and presently,

he has submitted application seeking permission to bring the

said counter claim on the record. Considering the case records

of the entire case as to whether such permission can be

allowed after such long period or not, this court has framed

issues vide Exhibit-83. Thereafter, the evidence affidavit has

also been submitted by the plaintiff and presently, the matter

is kept for the cross examination of the plaintiff witness by the

defendant. Regarding the counter claim of the defendant no.2

can be taken on the record or not after such long period, the

Hon’ble Supreme Court has recently laid down clearly in the

judgment of Ashok Kumar Kalra V/s. Wing CDR Surendra

Agnihotri reported on (2020) 2 - SCC - 394 that no time limit

has been prescribed in the Order-8, Rules-6 of CPC to submit

counter claim. However, it does not mean that counter claim

can be taken on record at any time after submitting the reply. 

10

It is laid down in the para-17 of the aforesaid judgment that

the court has to consider simultaneously the facts as to

whether the counter claim is within the time-limit or not and

whether it is barred by the Limitation Act or not. Whereas, it is

clearly laid down in para-18 that the counter claim cannot be

allowed to take on the record after framing of issues and it

may affect the principle of speedy trial if such permission is

granted.

Citing the aforesaid facts, the Hon'ble Supreme Court has

rejected the application seeking permission to take counter

claim on the record after framing of issues and the said

judgment can be made applicable to the case on hand in its

entirety……..

Thus, once it has been established by the Hon'ble Supreme

Court that the permission to take counter claim on the record

cannot be granted once the issues are framed and as

discussed in the case on the hand, the issues have been

framed vide Exhibit-83. Deposition of the plaintiff has also

been recorded vide Exhibit-84 and considering the same, the

counter claim of the defendant no.2 cannot be taken on the

records.

******

10. Thus, considering the entire facts, as discussed above, the

issues have been framed in the present case, the proceedings

of the suit have been initiated, the defendant no.2 has

preferred present application after very long period and it is

barred the provisions of the limitation. As per the judgment of

the Hon'ble Supreme Court, permission to take counter claim

on record cannot be granted once the issues have been framed

and according to the provision of Order-8, Rules-6(A) of the

CPC, the defendant is not entitled to seek counter claim

against the defendant in the suit of the plaintiff, as the present

application of the defendant no.2 cannot be granted, I pass

following order rejecting this application.”

(emphasis supplied)

15. The only justification supplied by the High Court can be seen

in para 13.13 where the High Court has come to the conclusion

that the cause of action for defendant no. 2 has arisen only after 

11

the High Court directed the appointment of a Nazir to represent

the interest of defendant no. 1. There is no other reasoning in the

decision of the High Court.

16. Now, we must consider the two issues raised by the

appellant.

17. Re: Defendant no. 2’s claim of specific relief not

maintainable against appellant: Ld. Sr. Counsel for the

appellant has argued that in terms of Order VIII Rule 6A of CPC, a

counter-claim must be filed seeking relief against the plaintiff and

cannot be filed against a co-defendant, for a counter-claim must

necessarily deal with the defendant's cause of action against the

plaintiff. On the other hand, Ld. Counsel for the respondent

submits that the counter-claim seeks two substantive reliefs,

namely, partition and specific performance. Consequently, it is

contended that the counter-claim is not directed solely against a

co-defendant, for, in an independent suit seeking the very same

reliefs, the appellant would necessarily have to be impleaded as a

party. The ultimate relief sought by defendant no. 2 is a declaration

of co-ownership of the deceased sister-in-law of plaintiff and a

consequent decree of specific performance as against that

ownership on the basis of the agreement of sale.

12

18. Order VIII, Rule 6A, CPC enables a defendant to set up a

counter-claim. Said provision is extracted as below;

6A. Counter-claim by defendant.—(1) 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 the filing of

the suit but before the defendant has delivered his defence or

before the time limited for delivering his defence has expired,

whether such counter-claim is in the nature of a claim for

damages or not:

Provided that such counter-claim shall not exceed the pecuniary

limits of the jurisdiction of the court.

(2) Such counter-claim shall have the same effect as a cross-suit

so as to enable the Court to pronounce a final judgment in the

same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in

answer to the counter-claim of the defendant within such period

as may be fixed by the court.

(4) The counter-claim shall be treated as a plaint and governed

by the rules applicable to plaints.

(emphasis supplied)

19. As per Rule 6-A(1), a defendant may assert any right or claim

against the plaintiff before the filing of the written statement, even

if such cause of action is unrelated to the plaintiff’s suit. The only

limitation is that the counter-claim must lie within the pecuniary

jurisdiction of the court. Such a counter-claim is treated as a

cross-suit and is governed by the rules applicable to plaints,

including the obligation to disclose the cause of action and pay

requisite court fees. The legislative intent is to avoid multiplicity of

proceedings by allowing both the original suit and the counterclaim to be tried and disposed of in a single trial, thereby avoiding 

13

prolonged and protracted litigation as held in Jag Mohan Chawla

v. Dera Radha Swami Satsang.7

20. Rule 6A provides that counter-claim shall be against the

claim of the plaintiff and such right or claim shall be in respect of

cause of action accruing to defendant against the plaintiff. This

Court in Rohit Singh (supra) held;

“21. Normally, a counterclaim, though based on a different

cause of action than the one put in suit by the plaintiff could be

made. But, it appears to us that a counterclaim has necessarily

to be directed against the plaintiff in the suit, though incidentally

or along with it, it may also claim relief against the codefendants in the suit. But a counterclaim directed solely

against the co-defendants cannot be maintained. By filing a

counterclaim the litigation cannot be converted into some sort of

an interpleader suit…..”

21. The above observations have been reiterated with approval in

subsequent pronouncement in Damodhar Narayan Sawale v.

Tejrao Bajirao Mhaske8, by observing as under;

“39. The decision of this Court in Rohit Singh v. State of Bihar

also assumes relevance in the above context. This Court held

that a defendant could not be permitted to raise counterclaim

against co-defendant because by virtue of Order 8 Rule 6-A CPC,

it could be raised by the defendant against the claim of the

plaintiff.”

22. In the present case, defendant no. 2 sought to raise a

counter-claim primarily for the relief of specific performance of

agreement dated 21.10.2011 executed in his favour by deceased

7 (1996) 4 SCC 699.

8 (2023) 19 SCC 175; also see Satyender v. Saroj, (2022) 17 SCC 154.

14

original defendant no. 1 with respect to her undivided share in the

suit property, by a direction to the Nazir, the substituted

representative of defendant no. 1, to execute a sale deed in

pursuance of the agreement to sell. The relief of specific

performance as sought to be raised by defendant no. 2 cannot be

set up by way of a counter-claim since the same is not directed

against the appellant/plaintiff, but is instead directed solely

against the co-defendant. In view of this, defendant no. 2 is held

to be disentitled to raise prayer of specific performance by way of

counter-claim. This is simply not permissible, and this position is

no more res-integra in view of the decision of this Court in Rohit

Singh (supra).

23. Defendant no. 2 however submits that he has not only

claimed the relief of specific performance, but has also sought

partition of suit property to separate the share he is entitled to

under the agreement. Defendant must first establish a right of

claim over the property, which is absent9 till he succeeds against

the estate of defendant no. 1 and only thereafter that the question

of setting up a counter claim against plaintiff may arise. Thus, the

9 Munishamappa v. M. Rama Reddy, 2023 SCC OnLine SC 1701.

15

submission that there is also a claim for partition must fail for the

same reason.

24. Re: Defendant no. 2 filed the counter-claim after issues

were framed: It is true that issues were framed on 12.02.2019

and the application for counter claim was filed almost two years

thereafter i.e., on 26.07.2021. For our purpose, it is sufficient to

refer to the guiding principle for determining the time-frame for

filing a counter claim, succinctly articulated in the judgment of

this Court in Ashok Kumar Kalra (supra). The relevant portion of

the decision is as under10;

“17. 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. As noted in the

above precedents, further complications stem from the fact that

there is a possibility of amending the written statement.

However, we can state that the right to file a counterclaim in a

suit is explicitly limited by the embargo provided for the accrual

of the cause of action under Order 8 Rule 6-A. Having said so,

this does not mean that counterclaim can be filed at any time

after filing of the written statement. As counterclaim is treated to

be plaint, generally it needs to first of all be compliant with the

limitation provided under the Limitation Act, 1963 as the timebarred suits cannot be entertained under the guise of the

counterclaim just because of the fact that the cause of action

arose as per the parameters of Order 8 Rule 6-A.

18. As discussed by us in the preceding paragraphs, the whole

purpose of the procedural law is to ensure that the legal process

is made more effective in the process of delivering substantial

justice. Particularly, the purpose of introducing Rule 6-A in Order

8 CPC is to avoid multiplicity of proceedings by driving the

parties to file separate suit and see that the dispute between the

parties is decided finally. If the provision is interpreted in such

a way, to allow delayed filing of the counterclaim, the provision

itself becomes redundant and the purpose for which the

10 Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri, (2020) 2 SCC 394.

16

amendment is made will be defeated and ultimately it leads to

flagrant miscarriage of justice. At the same time, there cannot be

a rigid and hyper-technical approach that the provision

stipulates that the counterclaim has to be filed along with the

written statement and beyond that, the court has no power. The

courts, taking into consideration the reasons stated in support of

the counterclaim, should adopt a balanced approach keeping in

mind the object behind the amendment and to subserve the ends

of justice. There cannot be any hard and fast rule to say that in

a particular time the counterclaim has to be filed, by curtailing

the discretion conferred on the courts. The trial court has to

exercise the discretion judiciously and come to a definite

conclusion that by allowing the counterclaim, no prejudice is

caused to the opposite party, process is not unduly delayed and

the same is in the best interest of justice and as per the objects

sought to be achieved through the amendment. But however, we

are of the considered opinion that the defendant cannot be

permitted to file counterclaim after the issues are framed and

after the suit has proceeded substantially. It would defeat the

cause of justice and be detrimental to the principle of speedy

justice as enshrined in the objects and reasons for the particular

amendment to CPC.

19. In this regard having clarified the law, we may note

that Mahendra Kumar case [Mahendra Kumar v. State of M.P.,

(1987) 3 SCC 265] needs to be understood and restricted to the

facts of that case. We may note that even if a counterclaim is

filed within the limitation period, the trial court has to exercise

its discretion to balance between the right to speedy trial and

right to file counterclaim, so that the substantive justice is not

defeated. The discretion vested with the trial court to ascertain

the maintainability of the counterclaim is limited by various

considerations based on facts and circumstances of each case.

We may point out that there cannot be a straitjacket formula,

rather there are numerous factors which needs to be taken into

consideration before admitting a counterclaim.

20. We may note that any contrary interpretation would lead to

unnecessary curtailment of the right of a defendant to file

counterclaim. This Court needs to recognise the practical

difficulties faced by the litigants across the country. Attaining

the laudable goal of speedy justice itself cannot be the only end,

rather effective justice wherein adequate opportunity is provided

to all the parties, need to be recognised as well (refer to Salem

Advocate Bar Assn. case [Salem Advocate Bar Assn. (2) v. Union

of India, (2005) 6 SCC 344 : AIR 2005 SC 3353] ).

21. We sum up our findings, that Order 8 Rule 6-A CPC does not

put an embargo on filing the counterclaim after filing the written

statement, rather the restriction is only with respect to the 

17

accrual of the cause of action. Having said so, this does not give

absolute right to the defendant to file the counterclaim 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 counterclaim, which is pegged till the issues

are framed. 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:

(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

counterclaim.

(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.”

25. It is also important to note that defendant no. 2 is seeking

specific performance of an agreement dated 21.10.2011, which

provided execution of the sale deed within twelve months.

Defendant no. 2 did not take any action. In any event, the next

course of action to seek execution of the sale deed arose

immediately after January 2012 when the appellant/plaintiff

instituted a suit seeking annulment of so-called agreement to sell.

The defendant no. 2 did nothing. Only after the death of his vendor

in October 2013 and after framing of the issues in February 2019

that the defendant no. 2 decided to file the application- only after

nine years of the filing of the suit, which is again two years after

framing of the issues. 

18

26. Enquiry and trial arising out of a claim to enforce an

agreement to sell is qualitatively different from the claim of a

plaintiff seeking a declaratory decree against a defendant. The civil

remedy that the appellant seeks, i.e., a declaration that his sisterin-law has no manner of right to alienate the property and

therefore to annul the sale is very different from the attempted civil

remedy through counter-claim for specific performance against a

co-defendant.

27. In view of the above, we are of the opinion that the High Court

committed an error in reversing the judgment of the Trial Court by

permitting defendant no. 2 to file a counter-claim against

defendant no.1 and not against the plaintiff. We, therefore, allow

the appeal arising out of SLP (C) No. 5635 of 2023 and set aside

the order and judgment passed by the High Court in SCA No.

12701 of 2021 dated 16.01.2023.

28. There shall be no order as to costs.

………………………………....J.

[PAMIDIGHANTAM SRI NARASIMHA]

………………………………....J.

[JOYMALYA BAGCHI]

NEW DELHI;

SEPTEMBER 12, 2025