HomeLegal ColumnsCounter Claim (Order VIII Rule 6A - 6G)

Counter Claim (Order VIII Rule 6A – 6G)

 

Counter claim is a relatively new feature added in the CPC in 1976. It is a claim made by the defendant against the plaintiff out of a cause of action that arose against the plaintiff and in favour of the defendant. In Abdul Majid v. Abdul Rashid AIR 1950 All 201, It was held that the essence of a counter claim is that the defendant should have an independent cause of action in the nature of a cross action and not merely a defence to the plaintiff’s claim.

Rule 6A provides that the defendant can file the counter claim before he delivers his defence, or before the time to deliver his defence expires. Rule 6A (4) provides that a counter claim can be treated as a plaint and will be governed by rules applicable to plaints. This position has been verified by the Supreme Court in the case of Laxmidas v. Nanabhai [ AIR 1964 SC 11 ].  When it was argued that a counter-claim is an amendment in the written statement that is not permissible by the Law the Court held as follows:

“ There is no question of amendment when a court orders a counter-claim to be treated as a plaint in a cross-suit, because initially a counter-claim is part of a written statement and by amendment a written statement cannot be converted into a plaint. I am not aware of any rule which permits of such amendment, nor has any been brought to our notice. Indeed what is done here is to split up a pleading expressly filed as a written statement into two, one of which remains a written statement and the other becomes a plaint. That is why it is said that the counter-claim is treated as a plaint in a “cross-suit”. ”

Rule 6B provides that if any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

Rule 6C provides that the plaintiff has the liberty to request the Court to exclude the counter claim from the ongoing proceedings and institute an independent proceeding for the same. In Jag Mohan Chawla v. Dera Radha Swami Satsang AIR 1996 SC 2222,, it was held that the plaintiff can make such a request before the issues with respect to counter claim is decided by the Court. There is no jurisdiction to exclude a counter claim merely on the ground that in the circumstances security cannot be ordered to be given by the defendants, though it has been ordered against plaintiffs. The fact that the defendant cannot bring an independent action is not a sufficient ground for refusing to strike out a counter-claim. In a suit for injunction, the defendant can plead counter-claim for injunction in respect of the same suit property or a different property based on a different cause of action is maintainable

Rule 6D states that even though the suit of the plaintiff is discontinued or dismissed, the suit of counter claim will nevertheless continue against the plaintiff.

Rule 6E states that in case the plaintiff does not reply to the counterclaim or defaults in replying to the counter-claim, the judgement may be pronounced by the Court against the plaintiff with respect to such counter-claim.

Rule 6F states that in any suit a set-off or counter-claim is established as defence against the plaintiff’s claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.

Rule 6G states that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.

In the year 2006, the scope of counter claim was further enlarged while at the same time reasonable restrictions were placed on it. The Apex Court in the case of Rohit Singh v. State of Bihar [ (2006) 12 SCC 734 ] held as follows:

A counterclaim, no doubt, could be filed even after the written statement is filed, but that does not mean that a counterclaim can be raised after issues are framed and the evidence is closed.”

The Court thus held that the counter claim is not just a secondary part of the written statement. It need not necessarily be filed with the written statement also, instead it can also be filed at a later stage of proceedings. The point to be noted is that it cannot be filed after the issues or framed or after the closing of evidence.

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Law Wire Team
Law Wire Teamhttps://lawwire.in/
Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.
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