Karnataka High Court

Shri. Basavaraj S/O. Ayyappa Mali vs Smt. Basamma Alias Parvatwwa on 11 September, 2025

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                                                                NC: 2025:KHC-D:11847
                                                           WP No. 101625 of 2021


                       HC-KAR




                           IN THE HIGH COURT OF KARNATAKA,
                                      AT DHARWAD
                       DATED THIS THE 11TH DAY OF SEPTEMBER, 2025
                                                BEFORE
                      THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
                           WRIT PETITION NO. 101625 OF 2021 (GM-CPC)
                      BETWEEN:

                      SHRI BASAVARAJ S/O. AYYAPPA MALI,
                      AGE: 34 YEARS, OCC: AGRICULTURIST,
                      R/O. MULLAR ONI, KUSHTAGI,
                      TQ. KUSHTAGI-583277, DIST. KOPPAL.
                                                                         ...PETITIONER
                      (BY SRI. MAHESH WODEYAR, ADVOCATE)
                      AND:

                      1.   SMT. BASAMMA @ PARVATWWA,
                           W/O. MAHABALESHAPPA GUNDALLI,
                           AGE: 45 YEARS, OCC: AGRICULTURE,
                           R/O. KUSHTAGI, TQ. KUSHTAGI-583277, DIST. KOPPAL.

                      2.   AYYAPPA S/O. IRESHAPPA MALI,
                           AGE: 41 YEARS, OCC: AGRICULTURE,
                           R/O. MULLAR ONI, KUSHTAGI,
Digitally signed by
CHANDRASHEKAR
                           TQ. KUSHTAGI-583277, DIST. KOPPAL.
LAXMAN
KATTIMANI
Location: High
Court of
                      3.   SUGURESH S/O. AYYAPPA MALI,
Karnataka,
Dharwad Bench              AGE: 32 YEARS, OCC: AGRICULTURE,
                           R/O. MULLAR ONI, KUSHTAGI,
                           TQ. KUSHTAGI-583277, DIST. KOPPAL.
                                                                       ...RESPONDENTS
                      (BY SRI. SHIVANAND MALASHETTI, ADV. FOR R1;
                          NOTICE TO R2 & R3 ARE SERVED)
                            THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
                      THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER
                      OR DIRECTION IN THE NATURE OF CERTIORARI, QUASH THE
                      IMPUGNED ORDER DATED 30.03.2021 PASSED BY THE LD. SR. CIVIL
                      JUDGE AT KUSHTAGI ON I.A.NO.IV IN O.S.NO.604/2015 VIDE
                      ANNEXURE A TO THE WRIT PETITION AND CONSEQUENTLY ALLOW
                      I.A.NO.4 FILED U/O.6 RULE 17 CPC AND ETC.
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                                                  NC: 2025:KHC-D:11847
                                                WP No. 101625 of 2021


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    THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP, THIS DAY ORDER WAS MADE THEREIN AS UNDER:

                              ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

This petition is filed seeking for following reliefs:

"i) A Writ or order or Direction in the nature of Certiorari, quash the impugned order dated 30.03.2021 passed by the Ld. Sr. Civil Judge at Kushtagi on I.A.No.IV in O.S.No.604/2015 vide Annexure-A to the writ petition and consequently allow I.A.No.4 filed U/O.6 Rule 17 CPC.

II) Any other writ or order or direction which this Hon'ble Court deems fit under the circumstances of the case in the interest of Justice and Equity."

2. Heard.

3. Sri.Mahesh Wodeyar, learned counsel appearing for

the petitioner submits that the petitioner is defendant No.2 in a

suit filed by respondent No.1 for partition and separate

possession. It is submitted that the petitioner and other

defendants have filed a detailed written statement categorically

stating that the plaintiff is in no way connected to the family of

the defendants and that she is not the daughter of the

Eareshappa @ Veereshappa and she is the stranger to the family

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of the defendants. It is submitted that the petitioner filed an

application seeking amendment of the written statement which

came to be rejected by the trial Court solely on the ground that

the application is filed belatedly. It is submitted that the

application is filed immediately after examination-in-chief of the

plaintiff witness and the proposed amendment would not change

the defence taken in their written statement nor cause any

prejudice to the other side. It is further submitted that the

proposed amendment to the written statement also includes a

counter claim based on the relinquishment deed. However, the

same came to be rejected by the trial Court. It is submitted that

the Hon'ble Supreme Court in the case of Ashok Kumar Kalra

v. Wing Commander Surendra Agnihotri and Others1 has

held that the illustrations stated at para 21 are not exhaustive

and the discretion lies with the Courts to consider the prayer for

counter claim considering the nature of relief sought. Hence, he

seeks to allow the petition.

4. Per contra, Sri.Shivanand Malashetti, learned counsel

appearing for respondent No.1/ plaintiff supports the impugned

(2020) 2 SCC 394

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order of the trial court and submits that entire proposed

amendment is with regard to raising of counter-claim, which is

impermissible as per the law laid down by the Hon'ble Supreme

Court in the case of Ashok Kumar Kalra referred supra as the

present application is filed after framing of the issues. Hence, he

seeks to dismiss the petition.

5. I have heard the arguments of the learned counsel

for the petitioner, learned counsel for respondent No.1 and

meticulously perused the material available on record. I have

given my anxious consideration to the submissions advanced.

6. The respondent No.1 filed OS No.604/2015 and the

same is pending on the file of the Senior Civil Judge, Kushtagi.

The said suit is filed for a relief of partition and separate

possession. The petitioner filed a detailed written statement

denying the relationship by contending that the plaintiff is the

stranger to the family and does not have any right with regard to

the property of the joint family and sought for dismissal of the

plaint. The records indicate that defendants No.2/petitioner filed

an application under Order 6 Rule 17 of CPC seeking amendment

of the written statement. On perusal of the said application and

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the affidavit accompanying the same indicates that the

defendants intend to raise counter claim in the suit filed by

respondent No.1. The prayer in the counter claim is to declare

that the defendants are the absolute owners and in possession

of the plaint schedule property. To support the said prayer,

certain facts have been asserted in the proposed amendment. It

is clear from the records that the proposed amendment is filed

after examination-in-chief of the plaintiff. The Hon'ble Supreme

Court while interpreting Order VIII Rule 6A of CPC in the case of

Ashok Kumar Kalra referred supra has held as under:

"8. Having observed on nuances of procedural justice, we need to turn our attention to the Order 8 of the CPC, which deals with written statement, set- off and counterclaim. Rules 1 to 5 of Order 8 CPC deal with the written statement. This Order dealing with the written statement was amended extensively by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (hereinafter referred to as "Act 22 of 2002"), whereby the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. In case he fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

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

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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 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.

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

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[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.

(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."

[Emphasis supplied]

7. The aforesaid enunciation of law clearly indicates

that the defendants in the suit can file a counter-claim and

allowing such counterclaim is discretion of the Court. However,

the trial Court is required to consider various factors and some

illustrative factors are enumerated at paragraph No.21 of the

aforesaid judgment. The illustration 10 referred in the aforesaid

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judgment clearly indicates that in any case the counter-claim

cannot be allowed to be raised after framing of the issues. The

said judgment was rendered by the Hon'ble three Judges of the

Supreme Court. One of the learned Hon'ble Judge has partly

supplemented the reasons and recorded the finding at paragraph

No.60. It would be useful to extract the same.

"60. Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the legislature, I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counterclaim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, 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."

[Emphasis supplied]

8. The aforesaid supplemented reason of the Hon'ble

Judge clearly indicates that the filing of the counterclaim can be

allowed after filing of the written statement till the stage of

commencement of recording of the evidence on behalf of the

plaintiff. However, the enunciation of law by the Hon'ble

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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.

9. In the instant case, the proposed amendment to the