Location: OHC, Cuttack Date: 25-Dec-2025 13:12:47 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1443 of 2025 (In the matter of an application under Article 227 of the Constitution of India)

Subhadra Behera and Another …. Petitioners -versus-

Manoranjita Behera and Another … Opposite Parties Advocate(s) appeared in this case:-

For Petitioners : Mr. P.R. Chhatoi, Advocate For Opp. Parties : Mr. S. Sahoo, counsel for O.P.1 Ms. Reshma Behera, O.P.2 in person CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

22^nd December, 2025 B.P. Routray, J.

1. Heard Mr. P.R. Chhatoi, learned counsel for the Petitioners, Mr. S. Sahoo, learned counsel for opposite party no.1 and Ms. Reshma Behera, opposite party no.2 in person.

2. Present CMP is directed against order dated 14^th July, 2025 of learned 1^st Additional Senior Civil Judge, Berhampur passed in C.S. No.329 of 2021, wherein the prayer of defendants to raise their counter claim has been allowed.

Location: OHC, Cuttack Date: 25-Dec-2025 13:12:47

3. Present petitioner is the plaintiff who filed the suit in the year 2021 and present opposite parties, who are the defendants, filed their written statement on 20^th December, 2021 after entered their appearance. Thereafter issues were framed on 8^th April, 2022. The plaintiffs then adduced their evidence and the evidence from their side was closed on 8^th September, 2023. After closure of evidence from the side of plaintiffs the defendants filed a petition to recall the witnesses of the plaintiffs for cross-examination which was allowed by the trial court and confirmed on challenge before this court vide order dated 30^th September, 2024 passed in CMP No.690 of 2024.

4. The counter claim was filed by the defendants on 13^th May, 2025. The same was allowed and the counter claim was accepted on record vide impugned order dated 14^th July, 2025 of the trial court.

The same is challenged by the plaintiffs in present CMP.

5. Law on the principles to file the counter claim in terms of Order 8 Rule 6-A of the Code of Civil Procedure is well settled. In Ashok Kumar Kalra vs. Wing CDR Surendra Agnihotri & Ors., (2020) 2 SCC 394, it has been held as follows:-

“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 Location: OHC, Cuttack Date: 25-Dec-2025 13:12:47 written statement, rather 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 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.

Xx .. .. xx ..

60. Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the legislature, I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counterclaim till the framing of issues for trial. To this exte