Or. 8 Rule 6A CPC | A Counter-Claim Cannot Be a Weapon Against a Co-Defendant: Supreme Court

“By filing a counter-claim, litigation cannot be converted into some sort of an interpleader suit”— Supreme Court of India decisively held that a counter-claim directed solely against a co-defendant is not maintainable in law. The Court further ruled that such a counter-claim cannot be allowed once the issues have been framed and the suit has entered the stage of evidence. In doing so, the Court overturned the Gujarat High Court’s ruling, restoring the trial court’s rejection of the application for amendment of written statement and filing of counter-claim.

The Supreme Court denounced the misuse of procedural tools to re-engineer a straightforward declaratory suit into a fresh suit for specific performance filed nearly a decade later. “The relief of specific performance as sought to be raised by defendant no. 2 cannot be set up by way of a counter-claim since the same is not directed against the appellant/plaintiff, but is instead directed solely against the co-defendant,” the Court declared in no uncertain terms.

“Litigation Cannot be Permitted to Morph Midway” – Apex Court Condemns Attempt to Raise Fresh Cause of Action Nearly a Decade Later

“The defendant cannot be permitted to file counter-claim after the issues are framed and after the suit has proceeded substantially” – SC applies Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri

The origin of the dispute lies in a 2012 civil suit filed in the City Civil Court at Ahmedabad, where the appellant, Rajul Shah, sought a declaration that her sister-in-law (original defendant no. 1) had no right to sell any portion of a jointly-owned bungalow and that the 2011 agreement to sell executed in favour of Kiranbhai Patel (defendant no. 2) was null and void. After defendant no. 1 passed away during pendency of the suit, a court-appointed officer (Nazir) was substituted in her place.

Defendant no. 2 then sought to file a counter-claim in 2021, nearly nine years after the suit was filed, praying for specific performance of the 2011 agreement and partition of the property. The trial court rejected the application citing the limitation bar, the inappropriateness of counter-claims against a co-defendant, and the fact that issues were already framed in 2019, and the suit had entered the evidence stage.

The Gujarat High Court, however, allowed the counter-claim under Article 227, reasoning that the cause of action arose only after the Nazir was appointed to represent the estate of the deceased. The Supreme Court found this logic “entirely misconceived,” holding that “the cause of action for seeking specific performance clearly arose back in 2011 or latest by 2012 when the plaintiff challenged the agreement.”

“A Counter-Claim Must Confront the Plaintiff’s Case, Not Circumvent It” – SC Restores the Authority of Order VIII Rule 6A

“It cannot be said that the petitioner has placed facts which are new to the suit proceedings” – SC rejects High Court’s reasoning as flawed and unprincipled

The Supreme Court clarified the true scope of Order VIII Rule 6A CPC, which permits a counter-claim by a defendant only against the plaintiff, not against a co-defendant. The Court reaffirmed its earlier decisions in Rohit Singh v. State of Bihar (2006) 12 SCC 734 and Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske (2023) 19 SCC 175, reiterating that: “A counterclaim has necessarily to be directed against the plaintiff in the suit… But a counterclaim directed solely against the co-defendants cannot be maintained.”

The attempt by defendant no. 2 to seek specific performance of a 2011 agreement allegedly entered with the now-deceased co-defendant was held to be non-maintainable. As the Court noted, “The legislative intent is to avoid multiplicity of proceedings by allowing both the original suit and the counter-claim to be tried and disposed of in a single trial, but this procedural facility cannot be used to bypass legal bars.”

The Bench also emphasized that the relief of partition was merely contingent upon proving specific performance, and therefore could not stand independently either. As such, both reliefs in the counter-claim failed to satisfy the requirements of a valid claim under Order VIII Rule 6A.

“The Embargo of Limitation Cannot Be Defeated by Calling It a Counter-Claim” – Supreme Court on Delay and Procedural Abuse

“Counter-claim cannot be filed at any time after the written statement… the outer limit is pegged till the issues are framed” – SC echoes binding position in Ashok Kumar Kalra

The Apex Court paid particular attention to limitation principles under Article 54 of the Limitation Act, which permits suits for specific performance within three years of the agreement or the date of refusal. In this case, the agreement to sell was executed on 21 October 2011, and yet no legal action was taken by defendant no. 2 for nearly a decade.

The Court criticized the respondent’s claim that he awaited a title-clear certificate from the seller, observing that “it cannot be believed in general circumstances that he would have waited indefinitely when the agreement was being challenged in Court.” The delay, the Court held, was fatal.

“By allowing the counter-claim nine years after the suit and two years after the framing of issues, the High Court has encouraged procedural indiscipline and permitted a barred claim to enter through the backdoor,” the Court said sternly.

The Supreme Court stressed that the discretionary power of courts to allow amendments or counter-claims cannot override substantive law, and reiterated the principle that “delayed counter-claims—especially those filed post-framing of issues—must be viewed with scepticism and rejected if found to be dilatory, disruptive or legally unsustainable.”

“Partition and Specific Performance Cannot Be Intertwined to Circumvent Civil Procedure” – Apex Court Separates Legal Reliefs from Legal Confusion

In dismissing the High Court’s justification that the partition prayer brought the plaintiff within the ambit of the counter-claim, the Court said: “The defendant must first establish his right to claim over the property, which is absent till he succeeds against the estate of defendant no. 1.” Since the claim for specific performance itself was unsustainable as a counter-claim, the partition relief fell along with it, having no independent legal standing.

“A claim for partition cannot validate an otherwise defective and barred claim for specific performance,” held the Court, pointing out that allowing such mixing of reliefs would “jeopardize the clarity and coherence of civil litigation.”

Restoration of Trial Court’s Order; Counter-Claim Rejected; High Court Set Aside

The Supreme Court allowed the appeal and set aside the High Court’s order dated 16.01.2023, reinstating the Trial Court’s reasoned dismissal of the counter-claim filed by defendant no. 2. The Court held that the counter-claim was not only barred by limitation, but also legally impermissible under CPC provisions.

“We are of the opinion that the High Court committed an error in reversing the judgment of the Trial Court by permitting defendant no. 2 to file a counter-claim against defendant no.1 and not against the plaintiff.”

Date of Decision: 12 September 2025