[Cites 3, Cited by 0]

Orissa High Court

Jyotsnamayee Dash vs Seema Agarwal ... Opposite Party on 8 December, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 13-Dec-2025 12:55:26



                          IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                CMP No.661 of 2025
                  (In the matter of an application under Article 227 of the Constitution of
                  India)

                   Jyotsnamayee Dash                             ....                  Petitioner

                                                              -versus-

                   Seema Agarwal                                 ...              Opposite Party

                  Advocate(s) appeared in this case:-

                               For Petitioner          :   Mr. Bichitra Narayan Satapathy,
                                                           Advocate
                               For Opp. Party          :   Mr. S. Mishra, Advocate


                                   CORAM: JUSTICE B.P. ROUTRAY
                                                   JUDGMENT

th 8 December, 2025

B.P. Routray, J.

1. Heard Mr. B.N. Satapathy, learned counsel for the Petitioner

and Mr. S. Mishra, learned counsel for the opposite party.

2. Present CMP is directed against order dated 2nd April, 2025 of

learned Senior Civil Judge, Bargarh passed in CS No.34 of 2014,

wherein the prayer for amendment of the written statement of the

defendant to insert the counter claim has been rejected.

3. Present opposite party is the plaintiff who filed the suit praying

for declaration of right, title, interest and confirmation of possession

and permanent injunction along with consequential reliefs. The

defendant (present petitioner) appeared in the suit and filed her written

statement. Thereafter the suit proceeded and the evidence from the side

of the plaintiff was closed. The defendant also examined two of her

witnesses and did not complete her evidence. On 10th February, 2025

before completion of evidence from her side, the defendant filed a

petition praying to insert counter claim in the written statement seeking

relief of cancellation of two sale deeds as void and further to declare

her right, title, interest over the property along with permanent

injunction against the plaintiff. This prayer of the defendant was

rejected by the learned trial court on the ground that it is submitted at a

very belated stage.

4. Rule 6-A permits for filing of counter claim by the defendant

with the discretion on the court to refuse acceptance of the same at a

belated stage. The provision under Rule 6-A of Order 8 C.P.C. is

reproduced bellow for better appreciation.

6-A. 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."

5. The Hon'ble Supreme Court while explaining the effect of

delayed filing of counter-claim has laid down the law for acceptance of

the same and the time period in that respect. In Ashok Kumar Kalra v.

Wing CDR Surendra Agnihotri and Others, (2020) 2 SCC 394,

Hon'ble Apex Court have held as follows:-

"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.

Xx .. .. xx ..

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."

6. From the afore-cited decision it is clear that the counter-claim

should be filed latest before recording of evidence on behalf of the

plaintiff. Admittedly in the present case at hand, the stage of the suit is

at continuing evidence from the side of the defendant, where the

defendant has already examined two of his witnesses. It is not disputed

that the defendant immediately appeared after receipt of notice in the

year 2014 and she without delay filed the written statement. Based on

the pleading and counter pleadings of respective parties the suit

proceeded and reached up to the present stage where two of the

witnesses from the side of the defendant have already been examined.

At such stage, in the year 2025, present petitioner is seeking the relief

to insert counter-claim on behalf of the defendant without any