Holding

A counter‑claim whose cause of action accrues after the filing of the written statement is impermissible under Order 8 Rule 6A, and amendment of the written statement cannot be granted as a matter of right.

Summary

The appellants filed a suit for title and possession of land in 1997. The respondent filed a written statement and, in 2006, sought to amend it to include a counter‑claim alleging a right to the same land, claiming the cause of action arose in 1998 after the written statement was filed. The trial court and the High Court allowed the amendment, but the Supreme Court held that a counter‑claim whose cause of action accrues after the defendant has filed his written statement is barred by Order 8 Rule 6A of the CPC. The Court emphasized that amendment of a written statement is not a matter of right and must be exercised with discretion, subject to statutory limits. Consequently, the lower courts' orders were set aside and the appeal was allowed.

Issues considered

Whether a counter‑claim can be filed after the defendant has filed his written statement when the cause of action arose thereafter, under Order 8 Rule 6A CPC.
Whether amendment of a written statement can be allowed as a matter of right under Order 6 Rule 17 CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17, s. Order 8 Rule 6A, s. Order 8 Rule 9

Subjects

counter claimamendment of written statementOrder 8 Rule 6ACivil Procedure Codediscretionary jurisdictioncause of actionpleadings

Judgment

l
[2008] 4..S.C.R. 1011

x
... BOLLEPANDA P. POONACHA AND ANR. A
II.
K.M. MADAPA
(Civil Appeal No. 1959 of 2008)
MARCH 13, 2008
B
[S.8. SINHA AND V.S. SIRPURKAR, JJ.]
>-
~
Code of Civil Procedure, 1908,
O. 8, r. 6A - Counter claim - Filing of, when cause of action
arose after filing of written statement - Permissibility of- Held: c
Not permissible.
O. 6 r. 17 -Amendment of written st.atement- Prayer for-
Held: Cannot be allowed as a matter of right- In such matters,
court has wide discretion - Howeve4' court to exercise
D
~ discretionary jurisdiction in judicious manner - While
• considering the application subservance of justice is .the
ultimate goal - Grant of relief would depend upon the factual
background involved in each case.
In 1997, a suit was filed in respect of certain E
properties. Respondent filed a written statement on
21.3.1997 contending that the said properties were
purchased by him. On ·4.1.2006, on .the premise that the
plaintiffs have dis-possessed the respondents in the year
~·
1998, counter claim was filed. In the said counter claim, it F
was contended that the land bearing Survey No. 61/1 had
fallen to his share in a partition of the family properties in
1980 and 1986 and the remaining land was purchased by
him in a public auction. In the application for amendment
of the written statement, a prayer was made for passing a
G
decree of recovery of possession of the suit land. The-
said application was allowed by the Civil Judge and
...... upheld by the High Court.
In appeal to this Court, appellant contended that
1011 H
I
e
1012 SUPREME COURT REPORTS [2008] 4 S.C.R..

A filing of a counter claim where cause of action arose after i
filing of the written statement is impermissible under Order
8 Rule GA CPC.
Allowing the appeal, the Court

B HELD: 1.1. Applications under Order 6, Rule 11 CPC
ordinarily are required to be considered liberally. It is also
not in dispute that amendment of written statement ~
deserves more liberal consideration than an application
for amendment of plaint. Order 8 Rule 9 again, subject to
.
c the statutory interdict enables a defendant to file additional
pleadings. [Para 9] [1016-8, C]
1.2. A right to file counter claim is an additional right.
It may be filed in respect of any right or claim, the cause
of action therefor, however, must accrue either before or
D after the filing of the suit but before the defendant has
raised his defence. Respondent in his application for --/..
~
amendment of written statement categorically raised the
plea that the appellants had trespassed on the lands, in
' '

question, in the summer of 1998. Cause of action for filing
E the counter claim was said to have arisen at that time. It ,_
was so explicitly stated in the said application. The said
application was, thus, clearly not maintainable. A belated
counter claim must be discouraged by this Court.
[Paras 10, 11] [1016-D, E, F; 1017-E]
F Mahendra Kumar v. State of Madhya Pradesh (1987) 3 )r"
SCC 265; Shanti Rani Oas Oewanjee (Smt.) v. Oinesh
Chandra Day (Dead) by Lrs. (1997) 8 SCC 174; Gurbachan
Singh v. Bhag Singh and Ors. (1996) 1 SCC 770; Ramesh
Chand V. Anil Panjwam (2003) 7 sec 350 - relied on.
G
Baldev Singh and Ors. v Manohar Singh and Anr (2006)
6 sec 498 - referred to.
2.1. In some decisions of this Court, defendant has >-
been allowed to amend his written statement so as to
H enable him to elaborate his defence or to take additional
• SOLLE PANDA P. POONACHA AND ANR. v.
K.M. MADAPA
1013

pleas in support of his case. The Court in such matters A
has a wide discretion. It must, however, subserve the
ultimate cause of justice. It may be true that further
litigation should be endeavoured to be avoided. It may
also be true that joinder of several causes of action in a
suit is permissible. [Paras 12,13] [1017-F, G] B
State of A.P & Ors. v. Mis. Pioneer Builders, A.P (2006) 9
SCALE 520; Steel Authority of India Ltd. v. Union of India &
Ors. (2006) (9) SCALE 597; Himmat Singh and Ors. v. I. C. I.
India Ltd. and Ors. (2008) 2 SCALE 152 - relied on.
c
2.2 The Court, must, however, exercise the
discretionary jurisdiction in a judicious manner. While
considering that subservance of justice is the ultimate
goal, the statutory limitation shall not be overstepped.
Grant of relief will depend upon the factual background
0
involved in each case. The Court, while undoubtedly
would take into consideration the questions of serious
injustice or irreparable loss, but nevertheless should bear
in mind that a provision for amendment of pleadings are
not available as a matter of right under all circumstances.
One cause of action, cannot be allowed to be substituted E
by another. Ordinarily, effect of an admission made in
earlier pleadings shall not be permitted to be taken away.
[Para 13] [1018-A, B, C]
Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal F
Kabrawala and Ors. AIR 1964 SC 11 - referred to.
CIVILAPPELLATE JURISDICTION: CivilAppeal No. 1959
Of 2008

From the final Judgment and Order dated 14.2.2007 of G
the High Court of Karnataka at Bangalore in VV.A. No. 68 of
2007 ,,.;fvi·<=~~c)
Dayan Krishnan, Nikhil Nayyar. Gautam Narayan, Samrat
Singh, Ankit Singhal and TVS Raghavendra Sayas for the
H
I~--
\... ,

1014 SUPREME COURT REPORTS [2008) 4 S.C.R.

A Appellants. ·i'
GirishAnanthamurthy, Vaijayanthi Girish and P.P. Singh
for the Respondent.
The Judgment of the Court was delivered by
B
S.B. SINHA, J. 1. Leave granted.
_...
2. Whether a counter claim is permissible to be filed after
~
filing of a written statement, is the core question involved herein .
. 3. Appellant filed a suit against the respondent claiming
c title and possession over the property in suit. Their names were
mutated in the revenue record of rights. Respondents had filed
a suit against the appellant which was marked as O;S. No. 67 :--
of 1996. An order of interim injunction was passed therein on
the premise that he under the garb of ex-pa rte interim injunction
D started making attempts to interfere with the possession of the
'1"
appellant in the scheduled properties.
4. O.S. No. 54of1997 was filed in the Court of Civil Judge,
'
Senior Division at Virajpet on 19.2, 1997. Respondent filed a
written statement on 21.3.1997 contending that he had
E
purchased the said properties in terms of an order passed by
the Assistant Registrar of Cooperative Societies, Kodagu,
Madikeri.
5. On or about 4.1.2006, inter alia on the premise that the
F plaintiffs have dis-possessed the respondents in the year 1998,
an application for leave to file counter claim was filed. In the
•
said counter claim, it was contended that the land bearing Survey
No. 61/1 had fallen to his share in a partition of the family
properties in 1980 and 1986 and the remaining land was
G purchased by him in a public auction. The cause of action for
filing the said counter claim was said to have arisen on
19.2.1997, when the suit was filed and in the end of summer of
1998 when the plaintiff tresspassed and encroached upon the >-
lands belonging to them. In the application for amendment of
~
the written statement, a prayer was made for passing a decree I
H
BOLLEPANDA P. POONACHA AND ANR. v. K.M. 1015
MADAPA [S.S. SINHA, J.]

of recovery of possession of the suit land stating; A
"Pass a judgment and decree against the plaintiffs
declaring that the defendant is the absolute owner of the
written statement schedule 'A' properties and direct the
plaintiffs to vacate and deliver possession of the schedule
'B' properties to the defendant and the same be ordered B
to be delivered by a fixed date and on default; the same
shall be delivered to the defendant by the due process of
> the court .. "
.. The said application has been allowed by the learned Civil
Judge by an order dated 12.10.2006, opining that the cause of
c
action for filing the said counter claim arose prior to. filing of the
written statement.

Revision application filecl by the appellant has been
dismissed by the High Court by reason of the impugned D
j_udgment.

..
~
6. Mr. Dayan Krishnan, learned counsel appearing on
behalf of the appellant submitted that filing of a counter claim
where cause of action arose after filing of the written statement
is impermissible under Order 8 Rule 6A of the Code of Civil E
Procedure.

7. Mr. GirishAnanthamurthy, the learned counsel appearing
on behalf of the respondent, however, urged that with a view to
avoid unnecessary litigation, the view taken by the learned Civil
Judge as also the High Court cannot be said to be wholly F
impermissible in law.

8. Order VIII Rule 6A of the Code of Civil Procedure reads
as under;

GA. Counter-claim by defendant - (1) A defendant in a G
suit may, in addition to his right of pleading a set-off under
rule 6, set up, by way of counter-claim against the claim of
the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff either
before or after the filing of the suit but before the defendant H
1016 SUPREME COURT REPORTS [2008] 4 S.C.R

A has delivered his defence or before the time limited for
delivering his defence has expired, whether such counter-
claim is in the nature of a claim for damages or not;
(Emphasis supplied)
B 9. Order VI Rule 17 of the Code provides for amendment
of pleadings. Subject of course to the applicability of the proviso
appended thereto (which is not applicable in the instant case),
such applications ordinarily are required to be considered
liberally. It is also not much in doubt or dispute that amendment
c of written statement deserves more liberal consideratior.t than
an application for amendment of plaint. Order VIII Rule 9 agai.n, ·
subje"Ct to the statutory interdict enables a defendant to file.
additional pleadings.
· 10. The provision of Order VIII Rule 6A must be considered
D having regard to the aforementioned provisions. A right to file
counter claim is a.n additional right. It may be filed in respect of
any right or claim, the cause of action therefor, however, must
accrue either before or after the filing of the suit but before .the
defendant has raised his defence. Respondent in his application
E for amendment of written statement categorically raised the plea
that the appellants had tresspassed on the lands, in question, )
in the summer of 1998. Cause of action for filingthe counter
claim inter alia was said to have arisen at that time. H was so
explicitly stated in the said application. The said application, in
F our opinion, was, thus, clearly not maintainable. The decision ·of ·
Sri Ryaz Ahmed (supra) is based on the deCision ofthis Court
in Baldev Singh and Others Vs. Manohar SJngh and Another
[(2006) 6 sec 498]. · · ·
Further, the facts of the instant case are distinguishable
G from those of the Sri Ryaz Ahmed (supra), In tnat case, the
proposed amendment by the defendant was allowed be filed to
as he wanted to make a counter-claim by way of a decree for
grant of mandatory injunction to remove the built up area on the.
disputed portion of land: It was therein held that instead of driving
H the defendant to file a sepa~ate suit therefor, it was more
BOLLEPANDA P. POONACHA AND ANR. v. K.M. 1017
MADAPA [S.B. SINHA, J.]

appropriate to allow the counter-claim keeping in mind the prayer A
of a negative declaration in the plaint. However, in the instant
case, the counter-claim was purportE~d to have been filed for
passing of a decree for recovery of possession of the disputed
·1and after the suit had been filed.

Baldev Singh (supra) is not an authority for the proposition B
that the Court while allowing an application for amendment will
permit the defendant to raise a counter claim although the same
> would run counter to the statutory interdicts contained in Order
; 8 Rule 6A. Some of the decisions of this Court in no uncertain
terms held it to be impermissible. c
See Mahendra Kumar Vs. Staff~ of Madhya Pradesh
[(1987) 3 SCC 265], Shanti Rani Das: Dewanjee (Smt.) Vs.
Dinesh Chandra Day (Dead) by Lrs. [C1997) 8 SCC 174].
11. In Gurbachan Singh Vs. Bhag Singh and Ors. [(1996) D
1 SCC 770], this Court clearly held;

l " ...... the limitation was that the counter-claim or set-off
must be pleaded by way of defence in the written statement
before the defendant filed his written statement or before
the time· limit for delivering the written statement has
E
expired, whether such counter claim is in the nature of a
claim for damages or not."
A belated counter claim must be discouraged by this Court.
See Ramesh Chand Vs. Anil Panjwani [(2003) 7 SCC 350]. F
12. We are, however, not unmindful of the decisions of this
'1
Court where a defendant has been allowed to amend his written
statement so as to enable him to elaborate his defence or to
take additional pleas in support of his case.
G
13. The Court in such matters has a wide discretion. It must,
however, subserve the ultimate cause of justice. It may be true
that further litigation should be endeavoured to be avoided. It
may also be true that joinder of several causes of action in a
suit is permissible.
H
1018 SUPREME COURT REPORTS [2008] 4 S.C.R.

A The Court, must, however, exercise the discretionary
jurisdiction in a judicious manner. While considering that
subservance of justice is the ultimate goal, the statutory limitation
shall not be overstepped. Grant of relief will depend upon the
factual background involved in each case. The Court, while
s undoubtedly would take into consideration the questions of
serious injustice or irreparable loss, but nevertheless should
bear in mind that a provision for amendment of pleadings are
not available as a matter of right under all circumstances. One
cause of action, cannot be allowed to be substituted by another.
c Ordinarily, effect of an admission made in earlier pleadings shall
not be permitted to be taken away. See State of A.P & Ors. Vs.
Mis. Pioneer Builders, A.P [(2006) 9 SCALE 520] and Steel
Authority of India Ltd. Vs. Union of India & Ors. [2006 (9)
SCALE 597] and Himmat Singh and Ors. Vs. I. C. I. India Ltd.
D and Ors., [2008 (2) SCALE 152]. .
14. We, for the reasons stated hereinbefore, are of the
opinion that the learned Civil Judge was not correct in allowing
the application for amendment of the written statement.
E 15. Even prior to coming into force of the Code of Civil
Procedure (Amendment) Act, 1976, the Court could treat a
counter claim or a cross suit.
This Court in Laxmidas Dayabhai Kabrawala Vs.
Nanabhai Chunilal Kabrawala and Others [AIR 1964 SC 11]
F held;
"11. The question has therefore to be considered on
principle as to whether there is anything in law - statutory
or otherwise - which precludes a court from treating a
counter-claim as a plaint in a cross suit. We are unable to
G· see any. No doubt, the Civil Procedure Code prescribes
the contents of a plaint and it might very well be that a
counter-claim which is to be treated as a cross-suit might
not conform to all these requirements but this by itself is
not sufficient to deny to the Court the power and the
H jurisdiction to read and construe the pleadings in a

-'::_~l!,. ', . ••
BOLLEPANDA P. POONACHAAND ANR. v. K.M. 1019
MADAPA [S.B. SINHA, J.]

reasonable manner. If, for instance, what is really a plaint A
in a cross-suit is madE~ part of a Written Statement either
by being made an annexure to it or as part and parcel
thereof, though described as a counter-claim, there could
be no legal objection to the Court treating the same as a
plaint and granting such relief to the defendant as would 8
have been open if the pleading had taken the form of a
.;..
plaint. Mr. Desai had to concede that in such a case the
;.
Court was not prevented from separating the Written
Statement proper from what was described as a counter-
claim and treating the latter as a cross-suit. If so much is c
conceded it would then become merely a matter of degree
as to whether the counter-claim contains all the necessary
requisites sufficient to be treated as a plaint making a
claim for the relief sought and if it did it would seem proper
to hold that it would be open to a Court to covert or treat D
)--
't·
the counter-claim as a plaint in a cross suit. To hold
otherwise would be to erect what in substance is a mere
defect in the form of pleading into an instrument for denying
what justice manifestly demands. We need only add that
it was not suggested that there was anything in 0. VIII. R.
E
6 or in any other provision of the Code which laid an
embargo on a Court adopting such a course."
16. Parliament, howevHr, has placed an embargo while
giving effect to the decision of this Court in inserting Order VIII
. ., Rule 6A of the Code of Civil Procedure. While there exists a F
statutory bar, the court's jurisdiction cannot be exercised.
17. For the reasons aforementioned, the impugned
judgments cannot be sustained which are set aside accordingly.
The appeal is allowed.
G
18. The defendant, howe!ver, would be entitled to file a suit
or an application to amend the plaints to such extent, which may
be held to be permissible in law. Respondent shall bear the
costs of the appellant. CounsE:l's fee assessed at Rs. 10,000/-.

D.G. Appeal allowed. H