Counterclaims against co-defendants are not maintainable, reaffirming Supreme Court precedent.

This Original petition is filed by the petitioner/defendant for setting aside the orders passed in I.A.No.8/2023 in O.S.No.2965/2016 by the Addl. Munsiff’s Court-I, Thrissur, for having rejecting the application of the petitioner filed under order

8 Rule 9 of C.P.C.

2. Heard the arguments of learned counsel for the petitioner and the respondent.

3. The case of the petitioner is that the 2^nd respondent filed a suit against respondent no. 1 for injunction. The defendant nos. 3,4 and 5 are the present petitioners herein, also filed a written statement. Later, they filed an additional written statement along with a counterclaim under Order 8 Rule 6-A of the CPC, seeking various reliefs, including declaration of perfect title as against the first defendant, restraining the first defendant from selling the property or pathway to the plaintiff, and allowing the counterclaim. The prayer for filing the additional written statement with the counterclaim was rejected by the trial Court.

Hence, the petitioners approached this Court.

4. The learned counsel for the petitioners contended that the defendant filed I.A for claiming counter claim in the suit, which was not considered the counter claimant shall be treated as a third party to the suit. Hence prayed for allowing the application. In support of his case, he has relied upon the judgment of the single judge of the Kerala High court reported in 2014 (4) KLJ 241 in the case of Kunnoth Moidu (Represented by B. Krishnan (Adv.) & R Parthasaradhy (Adv.) v. Mohammed Iqubal Shah & Ors. (Represented by M Gopikrishnan Nambiar (Adv). and the judgment of the Madras High Court in C.R.P.(PD) No.21/2011 dated 22.03.2013.

5. Per contra, the learned counsel for the respondent objected to the petition, supported the order passed by the trial Court, and contended that no counterclaim can be made against a co-defendant. Hence, he prayed for dismissal of the petition.

6. Considering the arguments advanced by the counsel for the petitioner, and the prayer made by the petitioner in the counterclaim, wherein the petitioners, being the third to fifth defendants, had already filed a written statement in the suit filed by the 2nd respondent. Since the petitioner had already filed a written statement, they subsequently filed the present application under Order 8 Rule 6-A of the CPC, seeking a declaration that the counter claimant has acquired rights over the counterclaim property by way of adverse possession, and for a decree against the first defendant restraining him from transferring the counterclaim property to the plaintiff.

7. On perusal, it is clearly revealed that the counterclaim is made against the first defendant, who is a co-defendant in this suit. The Hon’ble Apex Court, in its recent judgment in the case of Sanjay Tiwari v. Yugal Kishore Prasad Sao and Others [Civil, dated 12.11.2025], has categorically held that a counterclaim against a co-defendant is not maintainable. In the said case, the counterclaim made by a co-defendant against another co- defendant was set aside by the Supreme Court. In view of the latest judgment of the Hon’ble Apex Court, this case also clearly falls within the same principle, as the petitioners are defendant nos.3 to 5, and they made a counterclaim against the first defendant. As it is well settled, a counterclaim is always maintainable against the plaintiff and not against a co-defendant. Therefore, the trial Court rightly considered the application and dismissed the prayer of the petitioner seeking a counterclaim against the co-defendant. Accordingly, the order under challenge does not call for any interference. The petition is devoid of merits and is liable to be dismissed.

Accordingly, this Original petition is dismissed.