RAJUL MANOJ SHAH ALIAS RAJESHWARI RASIKLAL SHETHversusKIRANBHAI SHAKRABHAI PATEL & ANR.

                 [2025] 10 S.C.R. 152 : 2025 INSC 1109

           Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth
                                  v.
                  Kiranbhai Shakrabhai Patel & Anr.
                      (Civil Appeal No. 11781 of 2025)
                              12 September 2025
                 [Pamidighantam Sri Narasimha* and
                       Joymalya Bagchi, JJ.]


                            Issue for Consideration
       Whether the High Court was correct in reversing the order passed
       by the Civil Court dismissing the interlocutory application filed by
       respondent no.1 for amending the written statement and for filing
       a counter claim in a suit for declaration and injunction filed by the
       appellant; and legality of institution of a counter claim against a
       co-defendant.

                                   Headnotes
       Code of Civil Procedure, 1908 – Order VIII, Rule 6A – Counter-
       claim by defendant – Suit for declaration filed by the appellant
       against her sister-in-law-defendant no.1 seeking declaration
       that she has no right to transfer or deal with the suit property
       without her consent and to declare that the agreement to
       sell in favour of respondent No.1, as null and void – Death
       of defendant no.1 – Thereafter, Nazir of the Civil Court-
       respondent No.2 was substituted and appointed as defendant
       no.1 – On 26.07.2021, respondent no.1 filed application seeking
       amendment of the written statement to file counter claim
       thereby praying for direction to respondent No.2 to accept
       remaining consideration and execute sale deed in respect
       of the said agreement to sell executed by defendant no.1
       and to partition the suit property – Trial court dismissed the
       application by holding that a counter claim not maintainable
       against the co-defendant – However, the High Court allowed
       the application of the respondent no.1 and permitted him to
       file counter claim – Correctness:
       Held: High Court erred in reversing the judgment of the trial court by
       permitting defendant no.2 to file a counter-claim against defendant

* Author
[2025] 10 S.C.R.                                                            153

          Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                  Kiranbhai Shakrabhai Patel & Anr.

     no.1 and not against the appellant – 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, but is instead directed solely against the co-defendant –
     Defendant no.2 disentitled to raise prayer of specific performance
     by way of counter-claim – Further, defendant no.2 however submits
     that he has not only claimed the relief of specific performance, but
     has also sought partition of suit property to separate the share
     he is entitled to under the agreement – Defendant no.2 must first
     establish a right of claim over the property, which is absent till he
     succeeds against the estate of defendant no.1 and only thereafter
     that the question of setting up a counter claim against appellant
     may arise – Issues were framed on 12.02.2019 and the application
     for counter claim was filed almost two years thereafter, in 2021 –
     Defendant no.2 is seeking specific performance of an agreement
     dated 21.10.2011, which provided execution of the sale deed within
     twelve months – Defendant no.2 did not take any action – In any
     event, the next course of action to seek execution of the sale
     deed arose immediately after January 2012 when the appellant
     instituted a suit seeking annulment of so-called agreement to sell –
     Defendant no.2 did nothing – Only after the death of his vendor in
     October 2013 and after framing of the issues in February 2019 that
     the defendant no.2 decided to file the application, only after nine
     years of the filing of the suit, which was two years after framing
     of the issues. [Paras 22, 23, 25, 27]

                              Case Law Cited
     Rohit Singh & Ors. v. State of Bihar [2006] Supp. 7 SCR 278 :
     (2006) 12 SCC 734; Ashok Kumar Kalra v. Wing CDR. Surendra
     Agnihotri [2019] 17 SCR 214 : (2020) 2 SCC 394 – relied on.
     Munishamappa v. M. Rama Reddy, 2023 SCC OnLine SC 1701;
     Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske [2023] 6
     SCR 175 : (2023) 19 SCC 175; Satyender v. Saroj [2022] 13
     SCR 342 : (2022) 17 SCC 154; Jag Mohan Chawla v. Dera Radha
     Swami Satsang [1996] Supp. 2 SCR 509 : (1996) 4 SCC 699;
     Kishore Kumar Khaitan & Anr. v. Praveen Kumar Singh [2006] 2
     SCR 176 : AIR 2006 SC 1474 – referred to.

                                List of Acts
     Constitution of India; Code of Civil Procedure, 1908.
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                                        List of Keywords
       Counter claim; Execution of the sale deed; Suit for declaration;
       Agreement to sell; Amend written statement; Specific performance;
       Right of claim.

                                      Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11781 of 2025
       From the Judgment and Order dated 16.01.2023 of the High Court
       of Gujarat at Ahmedabad in SCA No. 12701 of 2021

                                  Appearances for Parties
       Advs. for the Appellant:
       Ritin Rai, Sr. Adv., Shamik Shirishbhai Sanjanwala, Kunal Vyas,
       Aditya Tripathi.
       Advs. for the Respondents:
       Pradhuman Gohil, Mrs. Taruna Singh Gohil, Alapati Sahithya
       Krishna, Rushabh N. Kapadia, Ms. Hetvi Ketan Patel, Ms. Taniya
       Bansal, Malak Manish Bhatt.

                      Judgment / Order of the Supreme Court

                                             Judgment

       Pamidighantam Sri Narasimha, J.

1.     Leave granted.
2.     Present appeal is against the judgment and order of the High Court of
       Gujarat1 against the order passed by the City Civil Court, Ahmedabad
       dismissing the interlocutory application2 filed by respondent no.1/
       defendant no.2 for amending the written statement and for filing
       a counter claim in a suit for declaration and injunction filed by the
       appellant.
3.     Facts: Short facts leading to the filing of the appeal are that the
       appellant, in 2012, instituted an original suit alleging that the property



1    In Special Civil Application No. 12701 of 2021 dated 16.01.2023.
2    Exhibit-107/108 dated 05.08.2021 in O.S. No.167 of 2012.
[2025] 10 S.C.R.                                                        155

             Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                     Kiranbhai Shakrabhai Patel & Anr.

      in question, a bungalow in a cooperative housing society situated
      near Stadium Char Rasta in Ahmedabad, belongs to her father and
      upon his demise, the said property came to be owned by her and
      by her brother jointly. However, upon the demise of her brother, the
      property was jointly owned by the appellant and her sister-in-law/
      defendant no. 1. In January, 2012, when the appellant came to know
      that her sister-in-law has agreed to sell a portion of the undivided
      share of the joint family property in favour of respondent no.1 /
      defendant No.2, the appellant filed the suit for a declaration that
      her sister-in-law, defendant no.1 has no right to transfer or deal with
      the property without her consent and to declare the agreement to
      sell dated 21.10.2011 in favour of defendant no.2, as null and void.
4.    On 12.10.2013, the original defendant no. 1 passed away pending
      disposal of the suit. Thereafter, on 23.07.2017, the appellant filed an
      application before the Trial Court declaring the factum of defendant
      no.1’s death and praying for her deletion from array of parties. Trial
      Court vide order dated 24.10.2019 allowed appellant’s application for
      deletion of defendant no.1. Meanwhile, on 10.10.2019, defendant no.
      2 moved an application before the Trial Court praying for substitution
      of the original defendant no. 1 with a court appointed officer under
      Order XXII Rule 4A of Code of Civil Procedure, 19083 which came
      to be dismissed vide order dated 15.11.2019.
5.    Aggrieved against the orders dated 24.10.2019 and 15.11.2019,
      defendant no. 2 moved a Special Civil Application before the High
      Court. On 10.02.2020, the High Court passed an order based on
      consent of both the parties, thereby quashing orders dated 24.10.2019
      and 15.11.2019. Consequently, High Court substituted and appointed
      the court official – Nazir of the City Civil Court – respondent no. 2
      as defendant no.1. Thereafter, the appellant also filed an amended
      plaint on 04.03.2020.
6.    Proceedings leading to the filing of the present appeal commenced
      when defendant no. 2, on 26.07.2021 moved an application seeking
      to amend the written statement by adding a counter-claim, praying
      for, a) to direct the Nazir/respondent no.2 to accept remaining
      consideration and execute a sale deed for the undivided share in
      furtherance of the agreement to sell dated 21.10.2011, and b) to
      partition the suit property as per Partition Act, 1893.


3    Hereinafter, CPC.
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7.     The Trial Court by its order dated 05.08.2021 dismissed the application
       by holding that defendant no. 2 has filed the application after a long
       time and that, it is abuse of the process to file such application
       after issues were framed, way back on 12.02.2019. Trial Court also
       observed that the defendant cannot seek specific performance of
       the agreement of sale dated 21.10.2011 against deceased defendant
       no. 1, as represented by a court officer, that too in a suit filed by the
       plaintiff. Following the decisions of this Court, the Trial Court held
       that a counter claim is not maintainable against the co-defendant.
       Respondent No. 1, defendant no. 2 challenged this order in Special
       Civil Application under Articles 226/227 and the High Court, by the
       order impugned before us allowed the petition.
8.     The High Court allowed the application of defendant no. 2 and
       permitted him to file his counter-claim. The relevant portion of the
       order impugned is as follows;
            “13.13. In view of this Court, considering the aforesaid
            facts, the prayers as prayed for by the petitioner herein
            are required to be granted and the prayers as prayed
            for in application below Exh. 107 /108 could have been
            prayed for by the petitioner herein, only after the Nazir
            of the City Civil Court as administrator of the property in
            question would have been appointed. The Nazir came to
            be appointed only by order dated 10.02.2020 by this Court
            in Special Civil Application No. 21979 of 2019 and soon
            thereafter, the applications below Exh.107/108 came to be
            filed by the petitioner herein. The cause of action can be
            said to have arisen after the Issues came to be framed, and
            therefore, in the facts of the present case, the petitioner
            could not have been non-suited on the ground of delay.
            13. 14. The trial Court has also come to the conclusion
            that the petitioner herein has chosen to file counter-
            claim against the co-defendant and the same is held to
            be not maintainable. It appears that the reliefs have not
            been sought for by the petitioner herein against the co-
            defendant, the same have been sought for against the
            Nazir - court official of the City Civil Court, as also against
            the respondent no.2 - original plaintiff. The counter-claim
            is maintainable, in view of the fact that the same is filed
            after the administrator- Nazir came to be appointed by
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             Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                     Kiranbhai Shakrabhai Patel & Anr.

              this Court vide order dated 10.02.2020, for the prayers
              as referred above.
              14. This Court by exercising supervisory jurisdiction under
              Article 227 of the Constitution of India, is inclined to allow
              the said applications below Exh. 107 /108 preferred by the
              petitioner herein by quashing and setting aside the order
              dated 05.08.2021 passed below Exh.107/108 in Civil Suit
              No. 167 of 2012 by the City Civil Court, Ahmedabad.
              15. In view of this Court, in the facts and circumstances
              of the present case, the present petition are required to
              be allowed and the same is allowed, accordingly, keeping
              it open for the respondent herein to lead the evidence on
              the ground of limitation and the same be decided by the
              Court below in accordance with law. It is also kept open
              for the respective parties to take all the contentions before
              the Court below, when the matter is taken-up for hearing
              and other issues that may be germane for adjudication
              of the dispute in question including the issue of limitation.
                      The present petition stands allowed, accordingly.”
                                                      (emphasis supplied)

9.    Aggrieved, the appellant approached this Court by filing the present
      civil appeal. We have heard Mr. Ritin Rai, learned senior counsel
      assisted by others, on behalf of the appellant. We have also heard
      Mr. Pradhuman Gohil, learned counsel and others on behalf of the
      respondent.
10. The two submissions made by Mr. Ritin Rai, learned senior counsel
    are simple and straightforward. The first submission is that a counter
    claim cannot be entertained after the issues are formulated in the
    suit. For this purpose, he relied on the decision of this Court in
    Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri4. The second
    submission, as accepted by the Trial Court as well, is that a counter
    claim cannot be made against a co-defendant and for this purpose
    the decision of this Court in Rohit Singh & Ors. v. State of Bihar5
    is relied on.


4    (2020) 2 SCC 394.
5    (2006) 12 SCC 734. Hereinafter, “Rohit Singh”.
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11. Mr. Pradhuman Gohil, learned counsel appearing on behalf of
    respondent no. 1/defendant no. 2, articulated his arguments very
    well and interpreted Order VIII Rule 6A of CPC innovatively and
    also relied on certain portions of the 27th Law Commission Report.
12. Analysis: Before we take up the issue relating to legality and propriety
    of entertaining an application for counter claim 9 years after filing
    of the suit, particularly when issues were framed 3 years before the
    said application and also the issue relating to the legality of institution
    of a counter claim against a co-defendant, we will touch upon the
    jurisdiction that the High Court was exercising.
13. The appellant did in fact raise the plea of the High Court entertaining
    a petition under Article 227 against the order passed by the Trial
    Court but the same was rejected by supplying the following reasoning
    after extracting the portion of the decision of this Court in Kishore
    Kumar Khaitan & Anr. v. Praveen Kumar Singh6 by observing that;
            “13. 10. Considering the aforesaid ratio as laid down by
            the Hon’ble Supreme Court, as referred above, while this
            Court is conscious of the restriction while exercising the
            jurisdiction under Article 227 of the Constitution of India,
            looking to the facts of the present case, interference
            is called for, in view of the fact that cause of action for
            seeking amendment and counter-claim could be said to
            have arisen, after the issues came to be framed by the
            trial Court on 12.02.2019. Undisputedly, the aforesaid
            prayers as prayed for by the petitioner herein, invoking
            Order-8 Rule-6(A) 1 and Order-6 Rule-17 of the Code
            of Civil Procedure 1908 seeking amendment in plaint
            and for counter-claim by the present petitioner, would
            normally be not granted, after the commencement of trial
            and considering the fact that, it would result in prolonging
            the suit proceedings, however, the same depends upon
            facts and circumstances of the case. The provisions of
            Order-6 Rule-17 and Order-8 Rule-6(A)1 of the Code of
            Civil Procedure, also provide that same be allowed, if the
            same are germane for determining the real controversy
            between the parties. In facts of the present case, it cannot


6   AIR 2006 SC 1474
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          Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                  Kiranbhai Shakrabhai Patel & Anr.

          be said that the petitioner· herein has placed on record the
          facts, which are new to the suit proceedings, and therefore,
          prayers as prayed for by the petitioner herein are required
          to be considered and required to be granted.”
                                                   (emphasis supplied)

14. The above-referred para does not indicate how the jurisdictional
    error has arisen for consideration. In any event of the matter, the
    relevant portion of facts, as found by the trial court while rejecting
    the application for counter claim, which we are of the opinion are
    correct in law as well as on fact, are extracted as hereinbelow for
    ready reference;
          “8. ………
          Upon considering the aforesaid provision of C.P.C.
          Order-8, Rules-6, when cause arises for counter claim
          for the defendant, then counter-claim can be lodged by
          the defendant against the plaintiff. In the present case,
          as per the details of the counter-claim submitted by the
          defendant no.2, he has demanded counter-claim against
          defendant no. 1 and he has not prayed for any relief
          against the plaintiff. If the suit is filed by the plaintiff, the
          defendant cannot file counter-claim against the defendant
          in the said suit.
          Further, upon conducting in depth study of the other details
          of the counter-claim, it is proved that the relief of specific
          performance sought by the defendant no.2 against the
          defendant no.1 in this counter-claim, is the agreement to
          sale which was executed by defendant no.1 in favor of
          defendant no.2 and no dispute is raised by the defendant
          no. 1 in that regard. However, the said agreement to sale
          was executed in the year 2011 ie. 21/10/2011. The said
          counter-claim for specific performance in that regard, was
          filed by the defendant no.2 in this suit in the year 2021. In
          this regard, upon considering provisions of Article-54 of the
          Limitation Act, the relief of specific performance can be filed
          within three years from the date of execution of agreement
          and if any condition is fixed in the agreement, then three
          years from the date of the condition and if any condition
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       is not fixed, then the date from which implementation of
       the agreement is denied or within three years from the
       date cause arises. This is a legal limitation. As per the
       provision of sub-rule-3 of Rule-6 of Order-8 of C.P.C.,
       the provisions applicable to claim are also applicable to
       counter-claim. Accordingly, all the provisions of Limitation
       Act can be applied to counter-claim. As per Article-54 of
       the Limitation Act, the agreement to sale submitted in
       this case and the representation made by Mr. Patel, Ld.
       Advocate of the defendant no.2 by citing condition no.3
       of the agreement to sale and upon evaluating the same,
       duration of twelve months is fixed after receiving the title
       clear certificate in condition. 3 of the agreement to sale.
       However, defendant no.2 has stated that the said title
       clear certificate is not received. The agreement to sale
       was executed in the year 2011 and the present plaintiff
       filed the suit to declare the said agreement to sale as null
       and void, ie the plaintiff has challenged the agreement to
       sale. Upon considering the said circumstances and the
       fact that defendant no.2 is also a party in this suit and
       the agreement to sale is challenged in the knowledge of
       defendant no.2, then in such circumstances, cause of the
       suit can be considered arisen as per provision of Article-54
       of the Limitation Act. Moreover, the responsibility to prove
       the provision of ready and willingness as per section- 16
       (c) of the Specific Relief Act, falls on defendant no.2. Since
       the agreement to sale was executed in favor of defendant
       no.2 in the year 2011, then it cannot be believed in general
       circumstances that he would have waited for title clear
       certificate even after suit was filed. Moreover, even after
       the said suit was filed, defendant no.2 did not initiate
       proceeding against defendant no. 1 for the implementation
       of the said agreement while he was alive and no such
       pleading is made in this revision application. The present
       counter-claim of defendant no.2 is completely barred by
       the provision of Limitation Act.
       9. Moreover, considering the significant contention of
       this case, the defendant no.2 has already filed his reply
       vide Exhibit-35 against the plaint of the plaintiff. He has
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          Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                  Kiranbhai Shakrabhai Patel & Anr.

          not submitted any counter claim with the said reply and
          presently, he has submitted application seeking permission
          to bring the said counter claim on the record. Considering
          the case records of the entire case as to whether such
          permission can be allowed after such long period or not,
          this court has framed issues vide Exhibit-83. Thereafter,
          the evidence affidavit has also been submitted by the
          plaintiff and presently, the matter is kept for the cross
          examination of the plaintiff witness by the defendant.
          Regarding the counter claim of the defendant no.2 can
          be taken on the record or not after such long period, the
          Hon’ble Supreme Court has recently laid down clearly
          in the judgment of Ashok Kumar Kalra V/s. Wing CDR
          Surendra Agnihotri reported on (2020) 2 - SCC - 394 that
          no time limit has been prescribed in the Order-8, Rules-6
          of CPC to submit counter claim. However, it does not mean
          that counter claim can be taken on record at any time
          after submitting the reply. It is laid down in the para-17
          of the aforesaid judgment that the court has to consider
          simultaneously the facts as to whether the counter claim
          is within the time-limit or not and whether it is barred by
          the Limitation Act or not. Whereas, it is clearly laid down
          in para-18 that the counter claim cannot be allowed to
          take on the record after framing of issues and it may affect
          the principle of speedy trial if such permission is granted.
          Citing the aforesaid facts, the Hon’ble Supreme Court
          has rejected the application seeking permission to take
          counter claim on the record after framing of issues and
          the said judgment can be made applicable to the case on
          hand in its entirety……..
          Thus, once it has been established by the Hon’ble Supreme
          Court that the permission to take counter claim on the
          record cannot be granted once the issues are framed and
          as discussed in the case on the hand, the issues have
          been framed vide Exhibit-83. Deposition of the plaintiff has
          also been recorded vide Exhibit-84 and considering the
          same, the counter claim of the defendant no.2 cannot be
          taken on the records.
                                  ******
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          10. Thus, considering the entire facts, as discussed above,
          the issues have been framed in the present case, the
          proceedings of the suit have been initiated, the defendant
          no.2 has preferred present application after very long period
          and it is barred the provisions of the limitation. As per the
          judgment of the Hon’ble Supreme Court, permission to
          take counter claim on record cannot be granted once the
          issues have been framed and according to the provision
          of Order-8, Rules-6(A) of the CPC, the defendant is not
          entitled to seek counter claim against the defendant in
          the suit of the plaintiff, as the present application of the
          defendant no.2 cannot be granted, I pass following order
          rejecting this application.”
                                                 (emphasis supplied)

15. The only justification supplied by the High Court can be seen in
    para 13.13 where the High Court has come to the conclusion that
    the cause of action for defendant no. 2 has arisen only after the High
    Court directed the appointment of a Nazir to represent the interest
    of defendant no. 1. There is no other reasoning in the decision of
    the High Court.
16. Now, we must consider the two issues raised by the appellant.
17. Re: Defendant no. 2’s claim of specific relief not maintainable
    against appellant: Ld. Sr. Counsel for the appellant has argued
    that in terms of Order VIII Rule 6A of CPC, a counter-claim must be
    filed seeking relief against the plaintiff and cannot be filed against
    a co-defendant, for a counter-claim must necessarily deal with the
    defendant’s cause of action against the plaintiff. On the other hand,
    Ld. Counsel for the respondent submits that the counter-claim seeks
    two substantive reliefs, namely, partition and specific performance.
    Consequently, it is contended that the counter-claim is not directed
    solely against a co-defendant, for, in an independent suit seeking
    the very same reliefs, the appellant would necessarily have to be
    impleaded as a party. The ultimate relief sought by defendant no.
    2 is a declaration of co-ownership of the deceased sister-in-law of
    plaintiff and a consequent decree of specific performance as against
    that ownership on the basis of the agreement of sale.
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           Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                   Kiranbhai Shakrabhai Patel & Anr.

18. Order VIII, Rule 6A, CPC enables a defendant to set up a counter-
    claim. Said provision is extracted as below;
            6A. Counter-claim by defendant.—(1) A defendant in a
            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
            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:
            Provided that such counter-claim shall not exceed the
            pecuniary limits of the jurisdiction of the court.
            (2) Such counter-claim shall have the same effect as a
            cross-suit so as to enable the Court to pronounce a final
            judgment in the same suit, both on the original claim and
            on the counter-claim.
            (3) The plaintiff shall be at liberty to file a written statement
            in answer to the counter-claim of the defendant within such
            period as may be fixed by the court.
            (4) The counter-claim shall be treated as a plaint and
            governed by the rules applicable to plaints.
                                                     (emphasis supplied)

19. As per Rule 6-A(1), a defendant may assert any right or claim against
    the plaintiff before the filing of the written statement, even if such
    cause of action is unrelated to the plaintiff’s suit. The only limitation
    is that the counter-claim must lie within the pecuniary jurisdiction
    of the court. Such a counter-claim is treated as a cross-suit and is
    governed by the rules applicable to plaints, including the obligation
    to disclose the cause of action and pay requisite court fees. 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, thereby avoiding prolonged and protracted litigation
    as held in Jag Mohan Chawla v. Dera Radha Swami Satsang.7


7   (1996) 4 SCC 699.
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20. Rule 6A provides that counter-claim shall be against the claim of
    the plaintiff and such right or claim shall be in respect of cause of
    action accruing to defendant against the plaintiff. This Court in Rohit
    Singh (supra) held;
             “21. Normally, a counterclaim, though based on a different
             cause of action than the one put in suit by the plaintiff could
             be made. But, it appears to us that a counterclaim has
             necessarily to be directed against the plaintiff in the suit,
             though incidentally or along with it, it may also claim relief
             against the co-defendants in the suit. But a counterclaim
             directed solely against the co-defendants cannot be
             maintained. By filing a counterclaim the litigation cannot
             be converted into some sort of an interpleader suit…..”
21. The above observations have been reiterated with approval in
    subsequent pronouncement in Damodhar Narayan Sawale v. Tejrao
    Bajirao Mhaske8, by observing as under;
             “39. The decision of this Court in Rohit Singh v. State of
             Bihar also assumes relevance in the above context. This
             Court held that a defendant could not be permitted to raise
             counterclaim against co-defendant because by virtue of
             Order 8 Rule 6-A CPC, it could be raised by the defendant
             against the claim of the plaintiff.”
22. In the present case, defendant no. 2 sought to raise a counter-claim
    primarily for the relief of specific performance of agreement dated
    21.10.2011 executed in his favour by deceased original defendant
    no. 1 with respect to her undivided share in the suit property, by a
    direction to the Nazir, the substituted representative of defendant no.
    1, to execute a sale deed in pursuance of the agreement to sell. 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. In view of this, defendant no. 2 is
    held to be disentitled to raise prayer of specific performance by way
    of counter-claim. This is simply not permissible, and this position is
    no more res-integra in view of the decision of this Court in Rohit
    Singh (supra).


8   (2023) 19 SCC 175; also see Satyender v. Saroj, (2022) 17 SCC 154.
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             Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                     Kiranbhai Shakrabhai Patel & Anr.

23. Defendant no. 2 however submits that he has not only claimed the
    relief of specific performance, but has also sought partition of suit
    property to separate the share he is entitled to under the agreement.
    Defendant must first establish a right of claim over the property,
    which is absent9 till he succeeds against the estate of defendant
    no. 1 and only thereafter that the question of setting up a counter
    claim against plaintiff may arise. Thus, the submission that there is
    also a claim for partition must fail for the same reason.
24. Re: Defendant no. 2 filed the counter-claim after issues were
    framed: It is true that issues were framed on 12.02.2019 and the
    application for counter claim was filed almost two years thereafter
    i.e., on 26.07.2021. For our purpose, it is sufficient to refer to the
    guiding principle for determining the time-frame for filing a counter
    claim, succinctly articulated in the judgment of this Court in Ashok
    Kumar Kalra (supra). The relevant portion of the decision is as under10;
             “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 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


9    Munishamappa v. M. Rama Reddy, 2023 SCC OnLine SC 1701.
10   Ashok Kumar Kalra v. Wing CDR Surendra Agnihotri, (2020) 2 SCC 394.
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       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
       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.
       19. In this regard having clarified the law, we may note
       that Mahendra Kumar case [Mahendra Kumar v. State
       of M.P., (1987) 3 SCC 265] needs to be understood and
       restricted to the facts of that case. We may note that even
       if a counterclaim is filed within the limitation period, the
       trial court has to exercise its discretion to balance between
       the right to speedy trial and right to file counterclaim, so
       that the substantive justice is not defeated. The discretion
       vested with the trial court to ascertain the maintainability
[2025] 10 S.C.R.                                                          167

          Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v.
                  Kiranbhai Shakrabhai Patel & Anr.

          of the counterclaim is limited by various considerations
          based on facts and circumstances of each case. We may
          point out that there cannot be a straitjacket formula, rather
          there are numerous factors which needs to be taken into
          consideration before admitting a counterclaim.
          20. We may note that any contrary interpretation would
          lead to unnecessary curtailment of the right of a defendant
          to file counterclaim. This Court needs to recognise the
          practical difficulties faced by the litigants across the
          country. Attaining the laudable goal of speedy justice itself
          cannot be the only end, rather effective justice wherein
          adequate opportunity is provided to all the parties, need
          to be recognised as well (refer to Salem Advocate Bar
          Assn. case [Salem Advocate Bar Assn. (2) v. Union of
          India, (2005) 6 SCC 344 : AIR 2005 SC 3353] ).
          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.
168                                                           [2025] 10 S.C.R.

                               Supreme Court Reports


                     (vii) Injustice and abuse of process.
                     (viii) Prejudice to the opposite party.
                     (ix) And facts and circumstances of each case.
                     (x) In any case, not after framing of the issues.”
25. It is also important to note that defendant no. 2 is seeking specific
    performance of an agreement dated 21.10.2011, which provided
    execution of the sale deed within twelve months. Defendant no. 2
    did not take any action. In any event, the next course of action to
    seek execution of the sale deed arose immediately after January
    2012 when the appellant/plaintiff instituted a suit seeking annulment
    of so-called agreement to sell. The defendant no. 2 did nothing. Only
    after the death of his vendor in October 2013 and after framing of
    the issues in February 2019 that the defendant no. 2 decided to file
    the application- only after nine years of the filing of the suit, which
    is again two years after framing of the issues.
26. Enquiry and trial arising out of a claim to enforce an agreement to
    sell is qualitatively different from the claim of a plaintiff seeking a
    declaratory decree against a defendant. The civil remedy that the
    appellant seeks, i.e., a declaration that his sister-in-law has no manner
    of right to alienate the property and therefore to annul the sale is
    very different from the attempted civil remedy through counter-claim
    for specific performance against a co-defendant.
27. In view of the above, 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. We, therefore, allow the appeal
    arising out of SLP (C) No. 5635 of 2023 and set aside the order
    and judgment passed by the High Court in SCA No. 12701 of 2021
    dated 16.01.2023.
28. There shall be no order as to costs.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Nidhi Jain