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Khairatabad, Hyderabad, Telangana, 500004
Khairatabad, Hyderabad, Telangana, 500004

Harshit Sharma | Amity Law School, Madhya Pradesh | 14th February 2020

ASHOK KUMAR KALRA V/s. WING CDR SURENDRA AGNIHOTRI SPECIAL LEAVE PETITION (CIVIL) No(s). 23599/2018

FACTS OF THE CASE

  1. The facts of the case were that, a counterclaim in the instant matter was preferred and filed after the stage of framing of Issues, whereby the issues were framed in entirety. 
  2. The Court, while hearing the Special Leave Petition in respect of the present case, which raised this sole legal issue referred to it last year wherein 3-judge bench of the Hon’ble Supreme Court of India held that a Court can exercise its discretion and permit the ling of a counter-claim after the written statement, till the stage of framing of the issues of the trial. 
  3. The present issue goes beyond to consider the acceptance of counterclaim when issues were framed. 

ISSUES RAISED

  1. Whether counterclaim in the civil suit be filed after the issues are framed in that case?

RULING OF THE COURT/ THE COURT HELD THAT

While dismissing the present Special Leave Petition and permitting the petitioners to file a fresh suit on the cause of action arose in the Counter claim if otherwise permissible in law, the Hon’ble Supreme Court of India observed the following: 

  • “After going through the three-Judge Bench Judgment in Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri & Ors., 2019 (16) Scale 544, in particular, para 20” which states as follows: –

We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the 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 counter-claim 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 counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

  • Period of delay.
  • Prescribed limitation period for the cause of action pleaded.
  • Reason for the delay.
  • Defendant’s assertion of his right.
  • Similarity of cause of action between the main suit and the counterclaim.
  • Cost of fresh litigation.
  • Injustice and abuse of process. 
  • Prejudice to the opposite party.
  • Facts and circumstances of each case.
  • In any case, not after framing of the issues.”“Given the fact that on the facts of the present case, a counter-claim was filed after the issues were framed, the said counter-claim cannot be filed as per the law laid down by this judgment.”

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