Trial Within Trial Not Permitted: Calcutta High Court Says ‘Parties’ Under Order VIII Rule 9 Does Not Allow Co-Defendants To Answer Each Other’s Counter-Claims
Sanchayita Lahkar
The High Court of Calcutta Commercial Division Single Bench of Justice Aniruddha Roy held that a co-defendant is not permitted to answer a counter-claim filed by another defendant, as the Code of Civil Procedure does not allow adversarial pleadings between defendants within a single suit. The Court dismissed an application by the first defendant, which had sought leave to place a rejoinder and an additional written statement to the counter-claim initiated by the third defendant. Stating that counter-claims function only between a plaintiff and a defendant, the Court determined that permitting such a response would improperly create inter se litigation inside the same proceeding and therefore declined the request with consequential costs.
The matter arises from an application filed by the first defendant seeking permission to submit a rejoinder and an additional written statement in response to a counter-claim filed by the third defendant. The plaintiff had instituted a commercial suit against multiple defendants, with the fifth defendant being a proforma party. The first defendant had already filed its written statement to the plaint before moving the present application.
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The first defendant argued that since the third defendant’s written statement contained a counter-claim directed against it, it should be allowed to file a corresponding reply. Relying on Order VIII Rule 9 of the Code of Civil Procedure (CPC), it contended that the term “parties” includes all parties to the suit and therefore permits a co-defendant to respond to a counter-claim raised by another defendant. Judgments from the Orissa High Court and the Supreme Court were cited in support of this position.
The plaintiff opposed the application, submitting that a counter-claim under Order VIII Rules 6A–6G CPC operates exclusively between a plaintiff and a defendant. It argued that the CPC does not envisage counter-claims or responsive pleadings between co-defendants, and permitting such filings would introduce issues beyond the statutory framework. The plaintiff maintained that the authorities relied upon by the first defendant were distinguishable and not applicable.
The Court recorded that “the plaintiff has filed the plaint. The reliefs, nature or the subject matter of the plaint is not relevant to be discussed for the purpose of adjudication of the instant application.” It noted the admitted fact that the third defendant “has filed its written statement lodging a counter claim” and that the first defendant now sought leave to file an additional written statement in response to that counter-claim.
While interpreting Rule 6A of Order VIII CPC, the Court stated that the rule “says that a defendant in a suit may, in addition to his right of pleading, set off under Rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim… accruing to the defendant against the plaintiff.” The Court observed that “the expression ‘counter claim’ is restricted by the statute in between the plaintiff and the defendant.” It also recorded that sub-rule (2) of Rule 6A provides that a counter-claim shall have the same effect as a cross suit, enabling pronouncement of a final judgment on both the original claim and the counter-claim.
The Court further noted that “the plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant and the counter claim shall be treated as a plaint.” It also referred to procedural consequences, observing that “if the plaintiff makes default in putting in a reply to the counter claim… the Court may pronounce judgment against the plaintiff.”
To interpret the scope of the term “parties” in Rule 9 of Order VIII, the Court held that it cannot be stretched to permit co-defendants to respond to each other's counter-claims, as doing so would create a “trial within the trial”.
In distinguishing the authorities cited by the first defendant, the Court recorded that “the facts In the matter of: Chandra Kishore (Supra) is totally different” because that case involved amendment of pleadings after amendment of plaint. Regarding the Supreme Court judgment in Noorul Hassan, the Court stated that “the procedure for trial of an election petition cannot be equated with… a regular constituted civil suit.”
The Court concluded that accepting the applicant’s contention would “permit a trial within the trial in a single suit in between the defendants, which is not permitted in law.” It found the application “totally frivolous, harassive and a ploy adopting a dilatory tactics to delay the trial of the commercial suit.”
The Court directed: “Accordingly, the instant application IA No. GA-COM/7/2025 being devoid of any merit stands dismissed with costs assessed at Rs. 10,000/- to be paid by the defendant No.1 in favour of the West Bengal State Legal Services Authority positively within two weeks from date and shall produce a copy of the money receipt before the learned Advocate-on-record for the plaintiff.”
Advocates Representing The Parties
For the Plaintiff: Mr. Rajarshi Dutta, Adv.; Mr. Sarbajit Mukherjee, Adv.; Mr. Deepak Jain, Adv.; Mr. Jishnu Dutta, Adv.
For the Defendants: Mr. Kushal Chatterjee, Adv.; Mr. Subhashis Mitra, Adv.; Mr. Shibjit Mitra, Adv., Mr. Debanik Banerjee, Adv.; Mr. Steven S. Biswas, Adv., Mr. Abir Lal Chakraborty, Adv.; Mr. Arijit Mohinder, Adv.
Case Title: Eden Consultancy Services Pvt Ltd vs Kerala State Electronics Development Corporation Ltd and Ors
Case Number: IA No. GA-COM/7/2025 in CS-COM/306/2024
Bench: Justice Aniruddha Roy
