The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.357 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Radheshyam Singhaal …. Petitioner -versus- Bajranglal Agrawala …. Opposite Party Advocate(s) appeared in this case:- For Petitioner : Mr. A.P.Bose, Advocate For Opposite Party : Mr. S.Mishra, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 23rd September 2025 B.P. Routray, J.
Legal Reasoning
1. Heard Mr. A.P.Bose, learned Advocate for the Petitioner, and Mr. S.Mishra, learned counsel for Opposite Party. 2. Present Opposite Party filed the suit in C.S. No. 36 of 2020 praying for a declaration of his right title interest over the suit property along with conformation of possession. C.M.P. No.357 of 2025 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 3. Present Petitioner, who is the Defendant in said suit appeared there on 8th July 2020 and filed his W.S. on 3rd August 2022 along with a petition praying to accept the same at the belated stage. The Trial Court vide order dated 1st March 2023 accepted the W.S. of the Defendant and accordingly settled the issue subsequently. After settlement of issue, awaiting the evidence from the side of the Plaintiff the Defendant filed a petition dated 5th February 2024 raising his counter-claim for specific performance of contract in respect of the suit property based on an unregistered sale deed. 4. The prayer of the Defendant to adduce his counter-claim has been rejected vide impugned order dated 15th May 2024 of the Trial Court on the ground that the prayer of the Defendant for leave to file counter-claim is time barred and secondly, no explanation has been offered by him as to the cause prevented him filing of such counter-claim at appropriate stage. But in the body of the impugned order certain observations have been made by learned Trial Court with regard to the merit of the counter- claim on the question of limitation. Said impugned order dated 15th May 2024 is subject matter of challenge in the present CMP. C.M.P. No.357 of 2025 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 5. Mr. Bose, learned counsel for the Petitioner (Defendant) submits that at the time of seeking leave to raise counter claim the party is not required to substantiate his cause for not raising the same at the appropriate time. Nevertheless, as per the petition filed by the Defendant seeking leave discloses the fact that he was not in possession of some relevant papers when the Plaintiff has suppressed the material facts concerning the suit land relating to the interest of the Defendant therein. Therefore, it is submitted that the time period to submit the counter claim as per the provisions contained in Rule 6A of Order 8 was not properly appreciated by the Trial Court and most importantly some unnecessary observations have been made by the Trial Court touching the merit of his claim prejudging the issue. 6. Mr. Mishra, learned counsel for the Opposite Party (Plaintiff) on the other hand submits that in view of the time period prescribed for filing the counter claim, the rejection of the Trial Court not granting leave in favour of the Defendant cannot be said incorrect. He further submits that the leave to file counter claim almost after 45 months of appearance of the Defendant C.M.P. No.357 of 2025 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 was not explained properly and therefore, the Trial Court has rightly rejected to grant leave for the same. 7. In terms of the provisions contained in Rule 6A of Order 8, the Defendant can set up his counter claim in addition to his right of pleading to set off, before the Defendant has delivered his defence or before the time limited for delivery his defence has expired. Explaining the proposition, Hon’ble Supreme Court in Ashok Kumar Kalra -vs- Wing CDR. Surendra Agnihotri & Ors., (2020) 2 SCC 394 have stated that: 17. The time limitation for filing of the counterclaim, is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order 8 Rule 6-A. Having said so, this does not mean that counterclaim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the time-barred suits cannot be entertained under the guise of the counterclaim just C.M.P. No.357 of 2025 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 because of the fact that the cause of action arose as per the parameters of Order 8 Rule 6-A. 18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6-A in Order 8 CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filing of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the court has no power. The courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the C.M.P. No.357 of 2025 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to CPC. xxx xxx xxx 21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim 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 counterclaim 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 counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, 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 counterclaim. (vi) Cost of fresh litigation. (vii) Injustice and abuse of process. (viii) Prejudice to the opposite party. C.M.P. No.357 of 2025 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 (ix) And facts and circumstances of each case. (x) In any case, not after framing of the issues. 8. In the case at hand, the Defendant appeared on 8th July 2020 and filed his W.S. on 3rd August 2022, which was accepted on 1st March 2023. Admittedly, issues have already been framed in the suit since 1st March 2023. Therefore, the claim towards counter claim as raised by the Defendant to get the leave from the Trial Court which was filed only in February 2024 is too late. Therefore, the observation held by the Trial Court that such leave seeking to raise counter claim is barred by time cannot be faulted with and moreover the causes as to the delay on the part of the Defendant for raising his counter claim is also found absent. 9. With regard to the observations made by the Trial Court touching the merit of the issue relating to the counter claim on the question of limitation is found unnecessary on the part of the Trial Court. It is for the reason that when the Court thought it proper to reject the leave to raise the counter claim at the outset, it need not delve into further to deal the merit of the counter C.M.P. No.357 of 2025 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:33:01 claim whether on the question of limitation or otherwise. This would definitely prejudice the interest of the Defendant to raise such issue, if any, in future. So, all such observations made with regard to the limitation aspect touching merit of the counter claim being unnecessary on the part of the Trial Court are thus set aside. 10. In the result, the CMP is allowed in part. So far as the rejection of the Trial Court with regard to grant leave to the Defendant to raise his counter claim is concerned, the finding of the Trial Court that the same cannot be entertained being time barred is confirmed. However, the other observations touching to the merit in the issue in the counter claim on the question of limitation is set aside.
Decision
11. The CMP is accordingly disposed of. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.357 of 2025 Page 8 of 8