Madhya Pradesh High Court
Suraj Singh vs Babulal on 4 November, 2025
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 4 th OF NOVEMBER, 2025
MISC. PETITION No. 4148 of 2021
SURAJ SINGH
Versus
BABULAL AND OTHERS
Appearance:
Shri Nirmal Sharma - Advocate for the petitioner.
Shri Harendra Singh Dhakad- Advocate for respondent No.3.
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by the petitioner/defendant No.2, being aggrieved by the impugned
order dated 09.11.2021 passed by the Civil Judge, Senior Division, Pohari,
District Shivpuri, in R.C.S. No. 21-A/2019, whereby the trial Court declined
to take the counter-claim filed by the petitioner on record.
2. Respondent No.1 (plaintiff) instituted a civil suit for declaration and
permanent injunction in respect of land situated at Survey No.32, measuring
2 biswa, having dimensions of 50 ft.x 45 ft. The plaintiff pleaded that he had
taken possession of the said land on 01.07.1995. Being a landless person, his
possession was initially treated as encroachment. Subsequently, on the basis
of his possession, the land was allotted to him v i d e resolution dated
14.04.2010, upon payment of premium of Rs.505/-.
3. After service of summons, the present petitioner (defendant No. 2)
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appeared and filed a written statement (Annexure P-4), denying all the
averments of the plaintiff and asserting that the disputed land never belonged
to the plaintiff. It was further pleaded that the petitioner was in possession of
the land and that the same had been allotted to him. Issues were framed
thereafter. Meanwhile, an order under Order 39 Rules 1 and 2 of CPC was
passed, against which an appeal was preferred. During the pendency of that
appeal, no substantial progress took place before the trial Court. The
plaintiff's affidavit under Order 39 Rule 4 CPC was received by the trial
Court on 04.10.2021. The appeal against the injunction order was decided
subsequently.
4. Thereafter, the petitioner filed a counter-claim (Annexure P-10)
seeking a declaration of his ownership and possession over the disputed
property. However, the trial Court, by the impugned order dated 09.11.2021,
rejected the counter-claim on the ground that issues had already been framed
and the matter was fixed for the plaintiff's evidence; hence, a counter-claim
could not be entertained at that stage.
5. Being aggrieved by the impugned order, petitioner filed this petition
with submission that order passed by the trial Court is illegal, arbitrary and
contrary to law. He contended that the very object of introducing the concept
of counter-claim in the Code of Civil Procedure was to avoid multiplicity of
proceedings. It was argued that both the plaintiff and the petitioner claim
ownership over the same property; therefore, the issues involved are identical
and should be adjudicated in the same proceedings. The petitioner further
submitted that the counter-claim was filed following subsequent
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developments, particularly after the trial Court and the appellate Court passed
orders on the temporary injunction application on 21.01.2021. Hence, filing a
counter-claim became necessary for proper adjudication of the dispute and to
prevent multiplicity of litigation. On these grounds, the petitioner prayed for
setting aside the impugned order and for taking the counter-claim on record.
6. Despite service of notice, none appeared on behalf of the contesting
respondent No.1 - Babulal.
7. After hearing counsel for the parties and perused the documents
available on record.
8. The trial Court rejected the counter-claim on the ground that the
written statement had already been filed, issues had been framed, and the
case was fixed for recording the plaintiff's evidence. Therefore, in the
opinion of the trial Court, the counter-claim could not be entertained at such
a belated stage.
9. Order VIII Rule 6(A) of the Code of Civil Procedure, 1908 provides
as under:-
(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
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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.
10. From a perusal of the provisions of Order VIII Rule 6(A) of the
Code of Civil Procedure, 1908, it is evident that a defendant may file a
counter-claim against the claim of the plaintiff in respect of any cause of
action that has accrued to the defendant, either before or after the filing of the
suit, but before the defendant has delivered his defence or before the time
prescribed for delivering such defence has expired, whether or not such
counter-claim is in the nature of a claim for damages.
11. In the present case, the petitioner did not file a counter-claim along
with his written statement. The application for temporary injunction was
decided by the trial Court on 21.01.2021, wherein the Court directed that the
plaintiff shall not be dispossessed from the disputed property. Subsequently,
on 01.10.2021, the plaintiff, along with four or five other persons, allegedly
attempted to dispossess the petitioner from the suit property. In these
circumstances, the petitioner sought to file a counter-claim, praying for a
declaration of his ownership and possession over the disputed property.
12. In the case of Ashok Kumar Kalra Vs. Wing CDR. Surendra
Agnihotri and Others reported in 2020 2 SCC 394, the Hon'ble Apex Court
held that legislative intention is to impose restrictions on belated filing of
written statement, set-off and counterclaim under Order 8 counterclaim is
designed to avoid multiplicity of proceedings time limit for filing
counterclaim is not explicitly provided for only limitation as to accrual of
cause of action is provided for. Relevant Para Nos. 43, 43.1, 43.2, 57, 59.1,
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59.2 and 59.3 of Ashok Kumar (supra) provide as under:-
43.1.First, it is possible that at the time of filing the written
statement, the defendant is unaware of the facts giving rise to
the cause of action for his counterclaim. For instance, in a
suit for declaration of title brought by the plaintiff against his
sister, the defendant may be unaware that the plaintiff has
wrongfully detained her belongings kept at the said property,
at the time of filing her written statement. In such a situation,
even though the cause of action for her counterclaim of
wrongful detention of belongings may have arisen before the
filing of the written statement, it may not have been possible
for her to raise the said counterclaim. Similarly, limited
access to justice, especially in rural areas, shaped by the
socio-economic context of parties, may compel the filing of
belated counterclaims.
43.2.Second, a perusal of Order 8 Rule 6-B suggests that it is
only limited to cases where the counterclaim is made along
with the written statement. In instances where a belated
counterclaim is raised by way of an amendment to the
written statement, or as a subsequent pleading, Rule 6-B
cannot be said to be applicable. This is because in any such
case, if the court relies on a technical interpretation of Rule
6-B to disallow the filing of a belated counterclaim, the
defendant would still be free to file a fresh suit for such a
claim. He may, in such matters, after filing the separate suit,
request the court to club the suits or to hear them
simultaneously. This may further delay the process of
adjudication and would certainly not help the plaintiff in the
first suit, who may have opposed the filing of the belated
counterclaim. Such multiplicity of proceedings goes against
the object with which Rules 6-A to 6-G were introduced to
CPC. Thus, the provisions under Order 8 should not be read
in isolation, but in a conjoint and harmonious manner, and
Rule 6-B cannot be read as a limitation on the court's
discretion to permit the filing of a belated counterclaim.
57. At the same time, in exceptional circumstances, to
prevent multiplicity of proceedings and a situation of
effective re-trial, the court may entertain a counterclaim even
after the framing of issues, so long as the court has not
started recording the evidence. This is because there is no
significant development in the legal proceedings during the
intervening period between framing of issues and
commencement of recording of evidence. If a counterclaim is
brought during such period, a new issue can still be framed
by the court, if needed, and evidence can be recorded
accordingly, without seriously prejudicing the rights of either
party to the suit.
59.1.First, the court must consider that no injustice or
irreparable loss is being caused to the defendant due to a
refusal to entertain the counterclaim, or to the plaintiff by
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allowing the same. Of course, as the defendant would have
the option to pursue his cause of action in a separate suit, the
question of prejudice to the defendant would ordinarily not
arise.
59.2.Second, the interest of justice must be given utmost
importance and procedure should not outweigh substantive
justice.
5 9.3.Third, the specific objectives of reducing multiplicity of
litigation and ensuring speedy trials underlying the
provisions for counterclaims, must be accorded due
consideration.
13. In the present case, it was the duty of the petitioner to establish that
he was unaware of the facts giving rise to the cause of action for filing the
counterclaim. The plaintiff instituted a civil suit seeking declaration and
permanent injunction on the basis of patta.
14. The defendant filed a written statement and specifically denied all
the averments made by the plaintiff in the plaint. The record clearly reveals
that the defendant was fully aware of his possession over the disputed
property and also knew that certain tenants were residing therein. Despite
having such knowledge, the petitioner failed to file any counterclaim at the
appropriate stage and has now sought to show the cause of action as having
arisen on 01.10.2021, which appears to be neither just nor proper.
15. It is true that the Code of Civil Procedure does not prescribe a
specific period of limitation for filing a counterclaim. However, the
judgments relied upon by the petitioner themselves recognize that a belated
counterclaim cannot be entertained once the trial has substantially
progressed. In the present case, the petitioner was fully conscious of his
ownership and possession from the very beginning, yet he did not prefer any
counterclaim along with his written statement. The same was filed only after
the framing of issues and when the matter was fixed for evidence.
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16. In such circumstances, the counterclaim filed after submission of
the written statement cannot be entertained. Therefore, in the considered
opinion of this Court, the learned Trial Court has rightly rejected the
counterclaim filed by the petitioner, and no interference is warranted by this
Court.
Accordingly, the petition stands dismissed.
(HIRDESH)
JUDGE
*AVI*
