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SUPREME COURT OF INDIA
PAMIDIGHANTAM SRI NARASIMHA, JOYMALYA BAGCHI, JJ.
Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth – Appellant
Versus
Kiranbhai Shakrabhai Patel & Anr. – Respondents
Civil Appeal No. 11781 of 2025 Arising Out Of SLP (C) No. 5635 of 2023
Decided On : 12-09-2025
Civil Procedure Code, 1908 – Order VIII Rule 6A – Counter-claim – Defendant may assert any right or claim against plaintiff before filing of written statement, even if such cause of action is unrelated to plaintiff’s suit – Only limitation is that counter-claim must lie within pecuniary jurisdiction of Court – Such a counter-claim is treated as a cross-suit and is governed by rules applicable to plaints, including obligation to disclose cause of action and pay requisite Court fees – Legislative intent is to avoid multiplicity of proceedings by allowing both original suit and counter-claim to be tried and disposed of in a single trial, thereby avoiding prolonged and protracted litigation – Relief of specific performance cannot be set up by way of a counter-claim since same is not directed against appellant/plaintiff, but is instead directed solely against co-defendant – Enquiry and trial arising out of claim to enforce agreement to sell is qualitatively different from claim of plaintiff seeking declaratory decree against defendant – Civil remedy that appellant seeks, that his sister-in-law has no manner of right to alienate property and to annul sale is very different from attempted civil remedy through counter-claim for specific performance against a co-defendant – Impugned Judgment of High Court set aside. (Paras 19, 22, 26 and 27)
Facts of the case:
Present appeal is against judgment and order of High Court of Gujarat [In Special Civil Application No. 12701 of 2021 dated 16.01.2023] against order passed by City Civil Court, Ahmedabad dismissing interlocutory application [Exhibit-107/108 dated 05.08.2021 in O.S. No. 167 of 2012] filed by respondent No. 1/defendant No. 2 for amending written statement and for filing a counter claim in a suit for declaration and injunction filed by appellant.
Findings of Court:
High Court committed error in reversing judgment of Trial Court by permitting defendant No. 2 to file a counter-claim against defendant No. 1 and not against the plaintiff.
Result : Appeal allowed.
Key Points: - A counter-claim is treated as a cross-suit and is governed by rules applicable to plaints, including the obligation to disclose a cause of action and pay requisite court fees (!) . - The legislative intent behind Order VIII Rule 6A of the CPC is to avoid multiplicity of proceedings by allowing both the original suit and the counter-claim to be tried and disposed of in a single trial (!) . - A counter-claim must be directed against the plaintiff and cannot be solely directed against a co-defendant (!) (!) (!) . - The relief of specific performance cannot be set up by way of a counter-claim if it is not directed against the plaintiff but solely against a co-defendant (!) . - A defendant cannot be permitted to file a counter-claim after the issues have been framed and the suit has proceeded substantially (!) (!) . - The High Court erred in reversing the Trial Court's judgment by permitting the defendant to file a counter-claim against a co-defendant and not against the plaintiff (!) . - The enquiry and trial arising out of a claim to enforce an agreement to sell is qualitatively different from a claim seeking a declaratory decree against a defendant (!) . - The civil remedy sought by the appellant (declaration of no right to alienate property and annulment of sale) is very different from the attempted civil remedy through a counter-claim for specific performance against a co-defendant (!) . - The appeal was allowed, and the High Court's order permitting the counter-claim was set aside (!) . - The Trial Court had dismissed the application for a counter-claim, holding it was filed after a long time and was an abuse of process, and that a counter-claim is not maintainable against a co-defendant (!) .
JUDGMENT :
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2. Present appeal is against the judgment and order of the High Court of Gujarat1[In Special Civil Application No. 12701 of 2021 dated 16.01.2023] against the order passed by the City Civil Court, Ahmedabad dismissing the interlocutory application2[Exhibit-107/108 dated 05.08.2021 in O.S. No.167 of 2012] 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.
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, 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[Hereinafter, CPC.] 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 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 c
(1) Counter-claim – Relief of specific performance cannot be set up by way of a counter-claim.(2) Counter-claim is treated as a cross-suit and is governed by rules applicable to plaints, including ob....
Counter-claim by defendant – Though normal rule is that subsequent to filing of written statement, counter-claim cannot be filed after issues have been framed, under exceptional circumstances, counte....
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
A counterclaim directed solely against a co-defendant is typically impermissible; however, if it intertwines with a plaintiff's claim, it may hold validity under commercial agreements.
Counter-claims must be timely and justified; substantial delay without explanation can result in rejection, although courts retain discretion to evaluate circumstances.
A counterclaim must be raised before issue framing begins; late submissions risk disrupting judicial efficiency and violate procedural rules.
Counterclaims may be allowed after closing evidence if justified by circumstances; procedural rules must serve justice.
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