Supreme Court: Outer limit for filing of counter-claim is pegged till issues are framed

We sum up our findings, that Order VIII Rule 6A of the Code of Civil Procedure 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:

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 counter-claim.

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.

IN THE SUPREME COURT OF INDIA

SLP (C) No. 23599 of 2018

Decided On: 19.11.2019

 Ashok Kumar Kalra Vs.  Surendra Agnihotri and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar, N.V. Ramana and Ajay Rastogi, JJ.

Authored By : N.V. Ramana, Mohan M. Shantanagoudar

N.V. Ramana, J.

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What type of counter claim can be filed in matrimonial proceeding?

 Heard Counsel for the parties and perused the record. The only question that arises for consideration in this Writ Petition is, as to whether the Family Court was justified in relying upon Order VIII Rule 6-A of the CPC, to hold that the petitioner was not entitled to raise a counterclaim after having filed the written statement and upon expiry of period of limitation prescribed under Order VIII Rule 6-A of the CPC. The findings rendered by the Family Court can be upset only if it is found that the CPC would be applicable to the right of the petitioner to submit a counterclaim in the proceedings for divorce filed by the respondent before the Family Court. In this regard the following provisions of the Act of 1955 are relevant:-

"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

"23-A of Hindu Marriage Act:- . Relief for respondent in divorce and other proceedings.--In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground."

10. A perusal of the above quoted Section 23-A of the Act of 1955, that any proceedings for divorce initiated by a party, the respondent would be entitled to raise a counterclaim and it would have to be treated as if the respondent had filed a petition seeking such relief. There is no period of limitation or any other rider mentioned in the said Section 23-A of the Act of 1955, as provided under Order VIII Rule 6-A of the CPC. Section 21 of the Act of 1955, quoted above, shows that the CPC would be applicable to the proceedings initiated under the said Act subject to other provisions contained therein. A conjoint reading of the aforesaid Section 21 and Section 23-A of the Act of 1955 shows that the respondent in a proceeding initiated under the Act of 1955, would have a right to raise a counterclaim without being subjected to the specific fetters contained in Order VIII Rule 6-A of the CPC. This is because, to the extent of applicability of Section 23-A of the Act of 1955, the provisions of Order VIII Rule 6-A of the CPC, would not be applicable. This clearly shows that the Family Court erred while passing the impugned order and holding that the application for raising counterclaim filed on behalf of the petitioner could not be entertained.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5768 of 2016

Decided On: 29.01.2019

 Ruchi Vs.  Bhanupratapsingh Gour

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(4) MHLJ 60

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