The Supreme Court held that there is no bar for taking on record counterclaims filed after the written statement but before the issues are framed under Order VIII Rule 6A CPC.

In this case, the counter-claim was filed nearly 13 years after the written statement was filed. The Appellant-defendant raised the issue before the Supreme Court "whether the Division Bench of the High Court had been justified in interfering with the order passed by the Single Judge for taking the counter-claim on record."

Noting the facts, the Court, while referring to the precedent set in the case of Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri under Order VIII Rule 6-A of the Code of Civil Procedure, 1908 and Rule 95 of the Bombay High Court (Original Side) Rules, held that "In a conspectus of the aforesaid and while proceeding on the fundamental principles that the rules of procedure are intended to subserve the cause of justice rather than to punish the parties in conduct of their case, we are clearly of the view that the counter-claim in question could not have been removed out of consideration merely because it was presented after a long time since after filing of the written statement. The Division Bench permitted filing of the requisite application seeking permission to file the counter-claim, while taking note of the submissions of the plaintiffs-respondents that they will not raise an objection to such an application on the ground that the issues had already been framed. In the totality of the facts and circumstances of the present case, we are clearly of the view that neither the requirements of Order VIII Rule 6-A CPC or Rule 95 of the Rules nor the principles enunciated and explained in Ashok Kumar Kalra operate as a bar over the prayer of the appellant for taking the belatedly filed counter-claim on record, which was indeed filed before framing of issues."

Following this, the Division Bench comprising of Justice Dinesh Maheshwari and Justice Aniruddha Bose allowed the appeal and set aside the order passed by the Division Bench of the High Court.

Case: Mahesh Govindji Trivedi vs Bakul Maganlal Vyas

Citation: 2022 LiveLaw (SC) 836 | CA 7203 OF 2022 | 12 October 2022