Filing a Strong Counter Claim in a Civil Case: Lawyers Advice
A civil trial is a lengthy procedure. To avoid multiplicity of proceedings and save the valuable time of the Honourable Court, counter-claim and set-off were adding to the Civil Procedure Code, 1908 by the Amendment Act of 1976. While set-off is considered as a defence mechanism where it is used as a shield, a counter-claim on the other hand is used as a weapon to sue the plaintiff. A counter-claim filed by the defendant is considered as a plaint and the plaintiff in the original suit is entitled to file a reply to the counter-claim in the form of a written statement.
Counter-Claim in a Civil Case or a Civil Law Suit
A counter-claim is a right granted to the defendant under Order 8 Rule 6A-6G of the Code of Civil Procedure, 1908. When the defendant is willing to file a suit on the plaintiff, he can do it in the form of a counter-claim. Usually, a counter-claim is filed with the written statement itself. A proper way to file a counter-claim is:
• Subject matter: Unlike set-off, a counter-claim need not be related to the transaction of the original suit. A counter-claim can be related to a cause of action that arose before the suit was filed or even after the suit was filed.
• The counter-claim can be pleaded in three ways: (1) If an issue already existed, the defendant can mention it via counter-claim in the written statement as per Order 8 Rule 1. (2) If an issue arose after the written statement was filed, the defendant with the permission of the Court can amend the written statement and mention the counter-claim. (3) By making a subsequent pleading under Order 8 Rule 9.
• Shall mention reasons: Order 8 Rule 6B mandates the defendant to mention proper reasons along with the counter-claim. Documents have to be attached.
• Pecuniary value for claiming damages: A counter-claim shall be allowed only if the value is within the pecuniary jurisdiction of the Court. The counter-claim is considered as a cross-suit. This is mentioned in Order 8 Rule 6A.
• Time period: A counter-claim is generally allowed till the issues are framed and the trial commences. It usually is upon the discretion of the Honourable Court. The discretion of the Court is to balance between the right to file a counter-claim and the right to have a speedy trial. Whenever a defendant is willing to file a counter-claim after the written statement is submitted, the defendant has to keep in mind the Limitation Act which provides for time-barred suits. The Honourable Courts have mentioned in various cases about the time restriction for accepting the counter-claim.
The Court will accept the counter-claim within the time when:
o it does not cause any prejudice to the opposite party
o the process is not unduly denied
o the same is within the interest of justice
• The status of the original suit is independent of the status of the counter-claim. Meaning even if the original suit is dismissed it does not affect the counter-claim. It is an independent suit and will be heard and pronounced by the Honourable Court as is mentioned in the Order 8 Rule 6D of the Code.
• Generally, a counter-claim by one co-defendant against the other co-defendant is not permitted. Unless one co-defendant has filed a counter-claim against the plaintiff and the other co-defendant is part of that cause of action along with that plaintiff.
Case Laws & Precedents:
In the case of Rohit Singh v State of Bihar [AIR 2007 SC 10], the defendants 3 to 17 filed a counter-claim against the plaintiff and defendants 1 and 2. The Honourable Supreme Court held that a counter-claim need not necessarily be against the plaintiff only. It can include the co-defendants if required. But the Court further stated that co-defendant filing counter-claim solely against the other co-defendant is not permissible. In the recent case of Ashok Kumar Kalra v Wing CDR. Surendra Agnihotri [SLP (C) No. 23599 of 2018], the Honourable Supreme Court held that filing of a counter-claim after a written statement is submitted is permitted but not after the issues have been framed. Only in exceptional situations, the Court can accept a counter-claim even after the issues have been framed but the recording of the evidence has not been started.
In the case of Nirmala Devi v Dhian Singh [2011 (1) Shim LC 340], the defendants 1 and 4 have made an application to the Court asking for dismissal of the counter-claim filed by the defendant 3 against the plaintiff and defendants 1 and 4. The Honourable Court has dismissed the application and directed them to file a written statement as a reply. In the case of Teofilo Barreto v Sadashiva G. Nasnodkar And Ors. [2007 (4) Bom CR 830], it was held that separate registration of the counter-claim is not required as it is a cross-suit but not a separate suit. Order 20 Rule 19(1) comes into picture whenever a counter-claim is filed because the decree mentions whatever is due to the plaintiff and whatever is due to the defendant.
If a defendant has any cause of action arising from any matter, he can avail the benefit of filing a counter-claim. This avoids multiplicity of suits and saves the time of the Court and the parties. A defendant has an opportunity to file a counter-claim till the issues are framed. If the defendant keeps in mind the time provided under the Limitation Act, the counter-claim will be admitted by the Honourable Court. The counter-claim that is well-within the pecuniary limits of the Court is only permissible.
Authored By: Adv. Anant Sharma & Sriya Sindhoor