[Cites 3, Cited by 0]
Orissa High Court
Subhadra Behera And Another vs Manoranjita Behera And Another ... ... on 22 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: 25-Dec-2025 13:12:47
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1443 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Subhadra Behera and Another .... Petitioners
-versus-
Manoranjita Behera and Another ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioners : Mr. P.R. Chhatoi, Advocate
For Opp. Parties : Mr. S. Sahoo, counsel for O.P.1
Ms. Reshma Behera, O.P.2 in person
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
nd
22 December, 2025
B.P. Routray, J.
1. Heard Mr. P.R. Chhatoi, learned counsel for the Petitioners, Mr.
S. Sahoo, learned counsel for opposite party no.1 and Ms. Reshma
Behera, opposite party no.2 in person.
2. Present CMP is directed against order dated 14th July, 2025 of
learned 1st Additional Senior Civil Judge, Berhampur passed in C.S.
No.329 of 2021, wherein the prayer of defendants to raise their
counter claim has been allowed.
3. Present petitioner is the plaintiff who filed the suit in the year
2021 and present opposite parties, who are the defendants, filed their
written statement on 20th December, 2021 after entered their
appearance. Thereafter issues were framed on 8th April, 2022. The
plaintiffs then adduced their evidence and the evidence from their
side was closed on 8th September, 2023. After closure of evidence
from the side of plaintiffs the defendants filed a petition to recall the
witnesses of the plaintiffs for cross-examination which was allowed
by the trial court and confirmed on challenge before this court vide
order dated 30th September, 2024 passed in CMP No.690 of 2024.
4. The counter claim was filed by the defendants on 13 th May,
2025. The same was allowed and the counter claim was accepted on
record vide impugned order dated 14th July, 2025 of the trial court.
The same is challenged by the plaintiffs in present CMP.
5. Law on the principles to file the counter claim in terms of Order
8 Rule 6-A of the Code of Civil Procedure is well settled. In Ashok
Kumar Kalra vs. Wing CDR Surendra Agnihotri & Ors., (2020) 2
SCC 394, it has been 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. The findings of the trial court are to the effect that since the
cause of action arose for the defendants on 3rd December 2022 to
raise their claim and so the counter claim, which is filed within three
years from the date of cause of action, is liable to be accepted.
7. The defendants contend before this court that they earlier filed
CS No.464 of 2021 against the plaintiffs along with others praying
for eviction of the plaintiffs from the suit land and the same was
dismissed on 3rd December, 2022. Therefore after disposal of their
independent suit, the cause of action arose for filing of the counter
claim on their behalf.
8. It is true that the limitation to file the suit for eviction is for 3
years. Here is a case where the counter claim has been filed and not
a separate suit. A counter claim is governed by the provisions
contained in Order 8 Rule 6-A of the C.P.C. It is prescribed in the
rules that the counter claim shall have in respect of a cause of action
accruing in favour of the defendant 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. In other words, if the
cause of action in the counterclaim relates to one accrued after filing
of suit, it should be one accruing before filing of the written
statement or the time given for the same. Further, the counter-claim
has the same effect as of the cross suit and the plaintiff is entitled to
file a written statement in answer to the counter claim. Thus, accrual
of a subsequent cause of action after filing of the written statement
and limitation thereof cannot be computed separately in derogation
of the limitation prescribed for filing of counter claim. The period of
limitation may continue for filing a separate suit, but for counter-
claim the same should not overlap the period of limitation prescribed
for the purpose of counter claim. As settled in Ashok Kumar Kalra
(supra), a counter claim has to be filed before the evidence has
commenced.
In the instant case, undoubtedly the evidence from the side
of the plaintiffs has already commenced and it has been completed
vide order dated 8th April 2022, regardless of the fact that further
cross-examination of the witnesses at the instance of the defendants
has been allowed and till now the cross-examination has not been
completed. Thus, undisputedly the evidence having been
commenced in the suit, the defendants are precluded or time-barred
from raising a counter claim.
9. The contention of the defendants is that since their independent
suit for eviction along with other reliefs against the plaintiffs was
dismissed on 3rd December 2022, so the cause of action to file the
counter claim arose only on 3rd December 2022. Such a contention
raised on behalf of the defendants cannot be accepted for the counter
claim because the principle for counter claim is differently governed
as per the provisions contained in Order 8 Rule 6-A C.P.C. When
present suit was filed in the year 2021, the defendants have filed
their written statement on 20th December 2021 after their appearance
in the suit. Thus, for the purpose of filing of the counter claim, it is
to be seen whether the cause of action was there on the part of the
defendants to file the counter claim in the suit according to their
contentions. What happened after filing of the written statement is a
subsequent cause of action, may be in favour of the defendants to
file a separate suit, but not for raising a counter claim in derogation
of the provisions as per Order 8 Rule 6-A. It is true that as per the
provisions contained in Rule 6-A a counter claim has the same effect
as a cross suit, which otherwise means that a cross suit has to run
along with the main suit. Therefore, the interpretation made by the
trial court as per the contentions of the defendants that the
subsequent cause of action arose on 3rd December, 2022 to file the
counter claim is found unacceptable. Furthermore, as per the written
statement filed by the defendants the cause of action arose for them
on 23rd August, 2021.
10. Present suit has been filed by the plaintiffs praying for
declaration of right, title, interest which is opposed by the defendants
and in addition to that they pray for eviction of the plaintiffs from
the suit land by way of counter claim. But as the principles are well
settled that a counter claim must be filed prior to commencement of
evidence present interpretation of the trial court to allow the prayer
of the defendants permitting them to raise the counter claim is found
erroneous. Accordingly the impugned order dated 14th July, 2025 is
set aside.
11. In the result the CMP is allowed.
( B.P. Routray)
Judge
M.K. Panda/P.A
