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Counter Claim Between Co-Defendants: Is It Legally Permissible?
In civil litigation, defendants often seek to assert their own claims through a counter claim to avoid multiple proceedings and promote judicial efficiency. But what happens when a defendant wants to file a counter claim between co-defendants? This question frequently arises in property disputes, partition suits, and commercial matters. Under Order VIII Rule 6A of the Code of Civil Procedure (CPC), 1908, counter claims are designed to counter the plaintiff's suit. However, courts have consistently ruled that they cannot typically be directed solely against co-defendants.
This blog post breaks down the legal position, drawing from key judicial precedents. We'll examine why such counter claims are generally not maintainable, explore exceptions, and provide practical guidance. Note: This is general information based on case law and not specific legal advice. Consult a lawyer for your case.
Understanding Counter Claims Under CPC Order VIII Rule 6A
Order VIII Rule 6A allows a defendant to set up a counter claim against the plaintiff's claim in addition to a set-off. Key provisions include:
- Rule 6A(1): A defendant in a suit may... set up, by way of counter-claim against the claim of the plaintiff, any right or claim... GIAN SINGH VS STATE OF PUNJAB - 2012 7 Supreme 1
- Rule 6A(4): The counter claim is treated as a cross-suit or plaint, governed by rules applicable to plaints.
- Rule 6C: The plaintiff may apply for exclusion of the counter claim before issues are framed if it ought to form a separate suit.
The legislative intent is to avoid multiplicity of proceedings by adjudicating related claims in one trial. However, the language explicitly ties counter claims to the plaintiff's claim, not disputes between defendants. Soma Devi VS Kashmiri Lal - 2017 Supreme(P&H) 2169
Why Counter Claims Against Co-Defendants Are Problematic
Courts have repeatedly held that counter claims between co-defendants are not maintainable for several reasons:
- No Procedural Safeguards: In case defendant files a counter claim against a co-defendant then co-defendant has not been given any right to file written statement to the counter-claim under Order VIII Rule 6A. Soma Devi VS Kashmiri Lal - 2017 Supreme(P&H) 2169
- Absurd Situations: Courts cannot grant relief against co-defendants, strike out such claims, or allow written statements, leading to procedural chaos. Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth VS Kiranbhai Shakrabhai Patel - 2025 8 Supreme 288
- Statutory Scheme: Rules 6A to 6G contemplate counter claims only against the plaintiff. Co-defendants are not equipped to respond as in a regular suit. Basanta Behera VS Menakabala Behera
In partition suits and property disputes, this issue is common. For instance, one defendant cannot counter claim solely against another for title or possession without implicating the plaintiff. Karunakar Panda vs Nityananda Panda - 2026 Supreme(Online)(Ori) 1036
Key Judicial Precedents on Counter Claim Between Co-Defendants
Indian courts, especially the Supreme Court and High Courts, have clarified this position through landmark rulings:
Supreme Court and High Court Rulings Against Maintainability
- Not Maintainable if Solely Against Co-Defendant: A counter claim directed solely against the co-defendants cannot be maintained, and the language of the law is plain and unambiguous. Basanta Behera VS Menakabala Behera
- Exclusion Mandatory: In a suit for specific performance, co-defendants' counter claim against each other was rejected as it was not incidental to the plaintiff's claim and time-barred. Sanjay Tiwari VS Yugal Kishore Prasad Sao - 2025 8 Supreme 574
- No Impleadment of Additional Parties: Trial courts cannot add third parties as counter claim defendants under Order I Rule 10; the counter claim must be excluded under Rule 6C. K. Sheela, W/o. Babukuttan VS State Bank of Travancore - 2022 Supreme(Ker) 147
Exceptions: When It May Be Allowed
While the general rule prohibits it, exceptions exist if the counter claim intertwines with the plaintiff's suit:
- Linked to Plaintiff's Claim: If the counter claim involves the plaintiff and co-defendants (e.g., tripartite agreements), it may survive. Alankar Padaji Mhatre vs Namdeo Narayan Naik, Since deceased thr. Legal heirs.-A. Ramabai Namdeo Naik - 2026 Supreme(Bom) 40
- Avoiding Multiplicity: In rare cases, where final adjudication requires it, courts may treat part of the claim as maintainable. There is nothing in law... which precludes a Court from treating a counter-claim as a plaint in a cross suit. Lingaraj Saraf VS Akhaya Kumar Saraf - 2007 Supreme(Ori) 446
- Commercial Contexts: Under the Commercial Courts Act, if claims arise from mutual obligations implicating the plaintiff, maintainability is upheld. Sanchaya Land And Estates Pvt. Ltd., Represented By Its Authorised Signatory, Mr. Dastagir Shariff, S/o. Noorulla Shariff vs HDFC Bank Ltd. - 2025 Supreme(Kar) 2302
However, even in these scenarios, courts scrutinize to ensure no prejudice to parties. Late filings after issues are framed are typically rejected. Vijaymala Sidling Doijad vs State Of Maharashtra - 2025 Supreme(Bom) 636
| Scenario | Maintainable? | Key Reason |
|----------|---------------|------------|
| Solely against co-defendant | No | Violates Order VIII Rule 6A scheme Soma Devi VS Kashmiri Lal - 2017 Supreme(P&H) 2169 |
| Includes plaintiff | Possibly | Avoids multiplicity Lingaraj Saraf VS Akhaya Kumar Saraf - 2007 Supreme(Ori) 446 |
| Post-issues filing | Rarely | Causes delay/prejudice Vijaymala Sidling Doijad vs State Of Maharashtra - 2025 Supreme(Bom) 636 |
| Partition suit | No (if only co-defendants) | Natural justice violation KARUNAKAR PANDA vs NITYANANDA PANDA - 2026 Supreme(Online)(Ori) 2012 |
Practical Implications in Common Suits
Property and Partition Suits
In partition suits, all parties have interchangeable roles. A counter claim solely against a co-defendant without notifying others violates natural justice. Ex parte decrees on such claims are set aside. KARUNAKAR PANDA vs NITYANANDA PANDA - 2026 Supreme(Online)(Ori) 2012 Failure to serve notice to co-defendant renders an ex parte decree liable to be set aside.
Specific Performance and Recovery Suits
Defendants cannot use counter claims for specific performance against co-defendants; they must file separate suits. Relief of specific performance cannot be set up by way of a counter-claim since same is not directed against appellant/plaintiff. Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth VS Kiranbhai Shakrabhai Patel - 2025 8 Supreme 288
Disciplinary and Service Matters
Analogous principles apply: Procedural violations in enquiries require proof of prejudice for vitiation, but counter claims must still follow CPC. State Bank Of Patiala VS S. K. Sharma - 1996 3 Supreme 511
What Should Defendants Do Instead?
If a counter claim against a co-defendant is rejected:
- File a Separate Suit: The safest option, preserving all rights.
- Seek Exclusion Under Rule 6C: Plaintiff can apply; courts often grant liberty for fresh suits.
- Amend Written Statement: Raise defenses, but not as counter claims.
- Implead Properly: Use Order I Rule 10 only for necessary parties in the main suit.
Defendants should act promptly to avoid limitation issues. Courts favor amendments before evidence, but not during arguments. Pramod Kumar VS Vijay Kumar Sah - 2005 Supreme(Pat) 649
Key Takeaways
- Generally Not Permissible: Counter claims between co-defendants are not maintainable under CPC unless linked to the plaintiff's claim. Soma Devi VS Kashmiri Lal - 2017 Supreme(P&H) 2169
- Procedural Focus: Lack of response mechanisms for co-defendants makes it untenable.
- Exceptions Rare: Only if it promotes efficiency without prejudice.
- Judicial Trend: Courts prioritize statutory language to prevent abuse.
In summary, while CPC aims for efficient justice, counter claim between co-defendants remains largely impermissible to uphold procedural integrity. For tailored advice, consult a civil litigation expert, as outcomes depend on specific facts.
Disclaimer: This post summarizes case law for educational purposes. Legal outcomes vary by jurisdiction and facts. Seek professional advice.
GIAN SINGH VS STATE OF PUNJAB - 2012 7 Supreme 1 Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth VS Kiranbhai Shakrabhai Patel - 2025 8 Supreme 288 Soma Devi VS Kashmiri Lal - 2017 Supreme(P&H) 2169 Basanta Behera VS Menakabala Behera Sanjay Tiwari VS Yugal Kishore Prasad Sao - 2025 8 Supreme 574 Karunakar Panda vs Nityananda Panda - 2026 Supreme(Online)(Ori) 1036 KARUNAKAR PANDA vs NITYANANDA PANDA - 2026 Supreme(Online)(Ori) 2012 Vijaymala Sidling Doijad vs State Of Maharashtra - 2025 Supreme(Bom) 636
Search Results for "Counter Claim Between Co Defendants: Legal Validity?"
2012 7 Supreme 1 • India - Supreme Court
R.M.LODHA, SUDHANSU JYOTI MUKHOPADHAYA, ANIL R.DAVE
Procedure, 1973 - Section 320 - Compoundable offences - Abatement or attempt to commit such offences u/s ... align="justify">Result: ... B.S. ... hereby withdraw all the allegations and counter-allegations made against each other”. ... The suit was compromised upon the defendants agreeing to pay the amounts due as per the schedule mentioned in the consent terms. ... ), attempt to murder (S.307), rape (S.376), trespassing (S.452) and kidnapping (S.364....
1977 0 Supreme(SC) 350 • India - Supreme Court
M. H. BEG, P. K. GOSWAMI, P. N. BHAGWATI, P. N. SHINGHAL, V. R. KRISHNA IYER
a body acting judicially, there must be a balance between the need for expedition and the need to give full opportunity to the defendant ... The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter. ... Fairness, however, does not necessarily require a plurality. of hearings or representations and counter-representations.
1994 0 Supreme(SC) 697 • India - Supreme Court
M. N. VENKATACHALIAH, S. MOHAN, M. M. PUNCHHI
Kindly refer this office letter of even No informing you that M/s Tata Cellular Ltd were provisionally selected for franchise for ... Concerning rental, it was specifically averred in the counter before the High court that the other charges had also been included ... The counter-affidavit filed on behalf of the government of India does not mention that there was a delay by Apex Committee, as held ... The bill proceeds upon the theory that the bid upon which the defendants acted was not the complainant's bid; that the com....
1980 0 Supreme(SC) 279 • India - Supreme Court
A. C. GUPTA, N. L. UNTWALIA, P. N. BHAGWATI, R. S. SARKARIA, Y. V. CHANDRACHUD
According to Kailasam, J., what is extracted above, runs directly counter to and cannot be reconciled with the following observations ... The defendant (accused) in that case was convicted of two counts of armed robbery and two counts of murder. ... Under the new Florida statutes, if a defendant (accused) is found guilty of first-degree murder, a separate pre-sentence hearing
2010 0 Supreme(SC) 609 • India - Supreme Court
G.S.SINGHVI, ASOK KUMAR GANGULY
Writ Petition - Claim petition - Plaintiff the original defendant was the tenant in respect of Room - Respondent ... (o) An improper and a frequent exercise of this power will be counter-productive and will divest this ... occupation of the deceased defendant. ... The Appellate Court noticed that in the suit filed by the defendants against the plaintiff, the defendants have specifically come
2017 0 Supreme(P&H) 2169 • India - Punjab and Haryana
RAJBIR SEHRAWAT
-- Therefore, there is no question of a counter claim being permissible against a co-defendant by a defendant in the suit. ... Civil Procedure Code, 1908, O.8 R.6-A--Counter Claim--Counter claim against a co-defendant is not maintainable--Counter claim can ... a person required to suffer a counter#H....
2025 8 Supreme 288 • India - Supreme Court
PAMIDIGHANTAM SRI NARASIMHA, JOYMALYA BAGCHI
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 ... is that counter-claim must lie within pecuniary jurisdiction of Court – Such a counter-claim is treated as a cross-suit and is governed ... No. 2 to file a counter-claim against defendant No. 1....
2010 0 Supreme(HP) 363 • India - Himachal Pradesh
KULDIP SINGH
Defendant No.3 filed a counter-claim against the plaintiff and other co-defendants, seeking joint ownership of the property based ... defendant No.3, stating that the counter-claim against co-defendants is maintainable and directed the defendant No.3 to file amended ... litigation and the absence of any bar in the Code for filing a co....
2005 0 Supreme(Pat) 649 • India - Patna
S.N.HUSSAIN
may set up any counter claim against the claim of the plaintiff but no such right exists against the claim of a co-defendant- The ... Code of Civil Procedure, 1908-Order 8 Rule 6-A-Counter-claim by defendant-Suit for declaration of title, recovery of possession and ... arguments continuing-defendant seeking amendment raising counter-c....
2022 0 Supreme(Ker) 147 • India - Kerala
P.SOMARAJAN
third person, who was impleaded as counter claim defendant No.2 so that defendant can go for a suit against said counter claim defendant ... suit and counter claim and rendered a judgment and decree - It is under challenge by sole defendant in suit, who is counter claim ... . original plaintiff in s....
2024 0 Supreme(P&H) 569 • India - Punjab and Haryana
ARCHANA PURI
In case defendant files a counter claim against a co-defendant then co-defendant has not been given any right to file written statement to the counter-claim under Order VIII Rule 6A. ... Further, Rule 6C gives entitlement to the plaintiff to raise an objection to the counter claim filed by the defendant before the issues are framed, in relation to the counter claim and the plaint....
2026 Supreme(Online)(Ori) 1036 • India - IN THE HIGH COURT OF ORISSA AT CUTTACK
ANANDA CHANDRA BEHERA
For which, in the counter claim of the defendant No.2, the plaintiff was set ex parte.Therefore, the counter claim of the defendant No.2 was heard ex parte. The defendant No.2 adduced evidence from his side in his counter claim. ... The defendant No.2 objected to the CMA No.40 of 2018 stating that, he (defendant No.2) had filed his counter claim only against th....
2026 0 Supreme(Bom) 40 • India - IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. JAMADAR
the counter-claim against the plaintiff and the co-defendant. ... a counter- claim against the plaintiffs and Defendant No. 5, came to be allowed. ... nos. 1 to 4 to file the counter-claim against the plaintiffs and Defendant Nos. 1 to 4. ... Counter-claim by defendant. - (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6,....
2026 Supreme(Online)(Ori) 2012 • India - Orissa High Court
For which, in the counter claim of the defendant No.2, the plaintiff was set ex parte.Therefore, the counter claim of the defendant No.2 was heard ex parte. The defendant No.2 adduced evidence from his side in his counter claim. ... The defendant No.2 objected to the CMA No.40 of 2018 stating that, he (defendant No.2) had filed his counter claim only against th....
2022 0 Supreme(Ker) 147 • India - Kerala
P.SOMARAJAN
The defendant submitted her written statement by raising a counter claim by impleading the counter claim defendant No.1 and 2 and claimed that the counter claim 2nd defendant is bound to grant 30% of the loan amount as margin money. ... In fact, the trial court ought to have excluded the counter claim as it is against a third person, who was impleaded as counter claim#H....
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