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2025 Supreme(Online)(KER) 11532
HIGH COURT OF KERALA
K. Babu, J
PREMACHANDRAN S/O. LATE. KUMARAN – Appellant
Versus
LOUIS ANTONY AGED 81 YEARS S/O.LOUIS – Respondent
OP(C) 1731/2022
SRI.B.KRISHNA MANI, SMT.N.V.SANDHYA, SRI.DHANUJA M.S
A counter-claim must be filed within the limitation period and cannot be introduced after issues are framed, as it undermines the principles of speedy justice.
Headnote:(A) Code of Civil Procedure, 1908 - Order VIII Rule 6A - Counter-claim - The petitioner sought to amend the written statement to include a counter-claim after issues were framed, which was dismissed by the Trial Court as time-barred and belated - The Supreme Court clarified that while a counter-claim can be filed, it must adhere to the limitation period and should not defeat the cause of justice or the principle of speedy trial. (Paras 16-20)
(B) Amendment of Pleadings - Courts have discretion to allow amendments, but it must consider the timing and the potential prejudice to the opposite party. (Paras 16-20)
Facts of the case:
The Original Suit was filed for fixation of boundary and injunction; after issues were framed, the petitioner sought to introduce a counter-claim two years later, which the Trial Court deemed time-barred.
Findings of Court:
The Court upheld the Trial Court's dismissal of the amendment application, affirming that the counter-claim was filed after the issues were framed and was thus not permissible.
Issues: The main issues were whether a counter-claim could be filed after issues were framed and the implications of delay in filing such a claim.
Ratio Decidendi: The court held that while counter-claims are allowed, they must be timely and should not undermine the trial process; the discretion to allow amendments must balance the right to speedy justice with the right to file claims.
Result: The Original Petition lacks merits and it stands dismissed.
JUDGMENT
The challenge in this Original Petition is to the order dated 16.07.2022 in I.A.No.2988/2019 in O.S.No.70/2017 on the file of the Principal Munsiff’s Court, Kochi. Defendant No.1 in the Original Suit is the petitioner. The plaintiff and defendant Nos. 2 to 5 are the respondents.
2. The plaintiff instituted the Original Suit for fixation of boundary and for consequential injunction. Defendant No.1 resisted the suit by filing written statement as early as in 2017. The Court issued a commission. The Commissioner measured the property with the assistance of a Surveyor. The Court below framed the issues and proceeded with the trial.
3. After two years of framing of issues, the petitioner/defendant No.1 filed an application seeking amendment in the written statement along with a counter claim seeking recovery of possession and mandatory injunction. The Trial Court dismissed the application holding that the petitioner sought relief in respect of a time barred claim and that the application is highly belated. The Trial Court relied on Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Others [ (2020) 2 SCC 394 :2019 (5) KHC 735], in support of the findings.
4. I have heard the learned counsel for the petitioner.
5. The learned counsel for the petitioner submitted that the Commissioner filed report in 2019 and it was based on the report of the Commissioner that he sought the counter-claim.
6. The time limit for filing counter-claim was considered by a Three Judge Bench of the Supreme Court in Ashok Kumar Kalra (supra). After referring to all the precedents on the subject, the Supreme Court concluded thus:-
“16. The time limitation for filing of the counter- claim, 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 counter-claim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action Under Order VIII Rule 6A. Having said so, this does not mean that counter-claim can be filed at any time after filing of the written statement. As counter- claim 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 time-barred suits cannot be entertained under the guise of the counter-claim just because of the fact that the cause of action arose as per the parameters of Order VIII Rule 6A.
17. 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 6A in Order VIII of the 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 filling of the counter-claim, the provision itself becomes redundant and the purpose for which the 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 counter-claim 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 sub-serve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counter- claim 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 counter- claim, no prejudice is
