Counterclaim Cannot Be Filed After Plaintiff’s Evidence Closes | Karnataka High Court Sets Aside Trial Court Order Allowing Delayed Amendment
Safiya Malik
The High Court of Karnataka Single Bench of Justice Vijaykumar A. Patil held that a counterclaim filed more than six years after the written statement, and after the framing of issues and closure of plaintiff’s evidence, is not legally sustainable. The Court quashed the trial court's order that had allowed such a counterclaim and stated that the “counterclaim cannot be allowed after framing of the issues.” Accordingly, the Court allowed the writ petition and set aside the trial court’s impugned order.
The petitioner initiated a civil suit (O.S. No. 504/2013) before the IV Additional Civil Judge and JMFC, Mangaluru, seeking a mandatory injunction to remove an allegedly illegal compound wall constructed on the western and northern boundaries of the plaint schedule property. The plaintiff further sought prohibitory relief restraining the defendants from obstructing access to the said property.
The defendants (respondents No. 1 and 2) filed their written statement on 26 August 2013, denying the petitioner’s claims. The matter proceeded, and the plaintiff examined himself as PW-1, with his evidence concluding on 15 December 2015. Thereafter, the case was posted for the defendants’ evidence starting from 31 March 2016. The proceedings saw multiple adjournments at the instance of the defendants.
On 20 September 2019, over six years after the written statement was filed and after the plaintiff’s evidence had closed, the defendants filed IA No.14 under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure (CPC), seeking to amend their written statement and introduce a counterclaim. The trial court allowed this application on 3 December 2019, prompting the petitioner to file the writ petition under Article 227 of the Constitution.
Counsel for the petitioner contended that the trial court had erroneously allowed a counterclaim well beyond the permissible stage as defined under Order 8 Rule 6A of the CPC. It was submitted that the statutory provision permits counterclaims only before the delivery of the defence or expiry of the time fixed for delivering the defence. It was further asserted that the trial court's decision contravened the legal position set out by the Supreme Court in Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri & Others, (2020) 2 SCC 394.
The petitioner contended that permitting a counterclaim at such a delayed stage — after the suit had advanced substantially and evidence had been recorded — would result in prejudice to the plaintiff and derail the procedural framework for efficient disposal.
The legal representatives of respondent No.1 and respondent No.2, though served with notice, did not appear. Respondent No.3, the Corporation of City of Mangalore, stated that the dispute was between the private parties, and no relief had been sought against it.
The Court examined the provisions of Order 8 Rule 6A of the Code of Civil Procedure, 1908. The rule allows a defendant to set up a counterclaim against the plaintiff with respect to a cause of action accruing before or after the filing of the suit but before the defence is delivered or the time for delivering the defence has expired.
Referring to the Supreme Court’s judgment in Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, the High Court stated in italics: “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... 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.”
The High Court further quoted the illustrative conditions laid out in Ashok Kumar Kalra to be considered by the court before allowing a belated counterclaim, including: “(i) Period of delay. (ii) Prescribed limitation period... (viii) Prejudice to the opposite party... (x) In any case, not after framing of the issues.”
The Court also recorded the supplementary opinion of one of the Hon’ble Judges in the said Supreme Court decision:“A counterclaim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff.”
Applying the above, the Court stated:“The enunciation of law by the Hon'ble Supreme Court in the aforesaid decision as per the majority view is very clear that the counterclaim cannot be allowed after framing of the issues.”
In the present case, the Court noted:“The counterclaim filed by respondent Nos.1 and 2 was allowed after closure of the evidence of the plaintiff and after more than six years from the date of filing of the written statement.”
Hence, the Court concluded that the trial court's order allowing the counterclaim was contrary to settled law.
The Court allowed the writ petition and set aside the impugned order dated 03.12.2019 passed on IA No.14 in O.S. No.504/2013 by the IV Additional Civil Judge and JMFC, Mangaluru. As a result, IA No.14 filed in the said suit by respondent Nos.1 and 2 stood rejected.
The Court further stated that the rejection of the counterclaim would not bar the respondents from availing of other remedies available under the law.
Advocates Representing the Parties
For the Petitioner: Sri Ravishankar Shastry G., Advocate
For the Respondents: Sri Hareesh Bhandary, Advocate
Case Title: Abdul Sattar v. M. Khalid (deceased) represented by LRs & Others
Neutral Citation: 2025:KHC:20126
Case Number: W.P. No. 2867/2020
Bench: Justice Vijaykumar A. Patil
[Read/Download order]
