COUNTER CLAIMS IN CIVIL SUITS

(Assignment towards the fulfillment of assessment in the subject of CPC)

NATIONAL LAW UNIVERSITY, JODHPUR

Submitted By: Submitted To:

Amita Sinwar Mr. Deepankar Sharma

Roll No. 1535 Faculty of CPC

B.A. LL.B (Sec A)

III- Semester

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY- NOVEMBER, 2018)

 TABLE OF CONTENTS

COUNTER CLAIMS IN CIVIL SUITS – A STUDY.............................................................................4

The specific provision made for counter-claims:-.......................................................................5

The effect of a counter-claim:-....................................................................................................5

Modes of setting up a counter-claim:-.........................................................................................6

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 TABLE OF AUTHORITIES

Cases
Anand Enterprises Vs. Syndicate Bank, AIR 1990 Kant P.175......................................................6
Jayanthilal’s case, AIR 1956 Pat 199..............................................................................................4
Mahender Kumar Vs. State of MP, AIR 1987 SC P.1395..............................................................5
Munshi Ram Vs. Radha Kishan, AIR 1975 Punjab P.113-114.......................................................5
Ramesh Chand Vs. Anil Punjwani, AIR 2003 SC 2508..................................................................6
Re Amichand Pyarelal (1977)79 Bom L.R......................................................................................4
Re Laxmidas AIR 1964 SC P.11.....................................................................................................4
Rohit Singh Vs. State of Bihar, AIR 2007 SC P.10........................................................................5

Statute

 Order VIII Rule 6-A - 6-G of the Code of Civil Procedure, 1908

Treatises

 P.R. Iyer, ‘Advanced Law Laxicon (2005) Vol 1 at P.1093.

 24th Report of the Law Commission at Page 150-151.
 Civil Procedure with Limitation Act, 1963 by C. K. Takwani, 7th ed., 2013
 Mulla, Code of civil procedure, 17th (ed.) 2007.

COUNTER CLAIMS IN CIVIL SUITS – A STUDY

A Counter-claim is “a claim made by the defendant in a suit against the plaintiff”. 1It can be
stated as follows:-

1
P.R.Iyer, ‘Advanced Law Laxicon (2005) Vol 1 at P.1093.

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 1) It is an independent claim
2) It is separable from the plaintiff’s claim, and
3) It is enforceable by a cross-action in favour of the defendant

Before 1976, there was no provision regarding the counterclaim in the Code of Civil Procedure.
In order to prevent multiplicity of proceedings, the Law Commission of India 2 favoured the
conceding of a right to make a counter claim to the defendant. This right was in addition to a
counter-claim in the same suit. Counter-claim result in the following advantages:-
i) Saving the time of the courts, particularly in the context of huge pendency of cases over a
long period of time;
ii) Eliminate the inconvenience of the parties to filing fresh litigation, on the issues which
could be well-resolved in the present suit itself; This would also result in the avoidance of
multiplicity of proceedings and
iii) Help in the early disposal of cases which otherwise, would have been inordinately
delayed.

In view of the weighty reasons that prevailed with the then Govt., an Amendment Act of 1976 to
CPC made a provision for counter-claims.3 Such a counter-claim may defeat the relief sought by
the plaintiff and thus this can be viewed as a “cross-action”. 4 Another factor that weighed with
the Government in enacting the Amendment of 1976 was the ruling of the apex court 5 that right
to make a counter-claim be made statutory. Though the Government acted after a lapse of 12
years for acting on the ruling of the apex court, 6 it has served a landable purpose in achieving the
objectives such as avoidance of multiplicity of proceedings and to expedite the course of justice
and give justice to both the parties to the suit, though the counter-claims can be set up in respect
of a claim for which the defendant can file a separate suit. 7 The court, due to liberal construction,
considered the counter claim as a plaint in a cross-suit and hear the original suit and counter
claim together and give its decision, provided the counter-claim is property stamped.

2
See 24th Report of the Law Commission at Page 150-151.
3
See the Amendment Act 1976 inserting Rules 6A to 6G in the CPC.
4
In Re Amichand Pyarelal (1977)79 Bom L.R. See also Jayanthilal’s case, AIR 1956 Pat 199.
5
In Re Laxmidas AIR 1964 SC P.11.
6
Ibid.
7
Munshi Ram Vs. Radha Kishan, AIR 1975 Punjab P.113-114

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The specific provision made for counter-claims:-
Rule 6A (1): This enables a defendant to set up by way of counter-claim against the claim of the
plaintiff any right or claim in respect of action accruing to the defendant against the plaintiff
either before or after filing of the suit but before the defendant has delivered his defence or
before the time fixed for delivery of his defence has expired. The following limitations are
imposed on the defendant:
I) Counter-claim should not exceed the pecuniary limits of the jurisdiction.8
(i) this is due to the reason that the pecuniary jurisdiction cannot be ousted;
(ii) the power of the court to try the suit already entertained cannot be taken away by
accepting the counter-claim beyond the pecuniary jurisdiction;
(iii) a counter-claim solely against co-defendants is not maintainable, though the defendant
along with plaintiff may claim relief against the co-defendants in the case;9
(iv) the defendant may set up a counter-claim against the plaintiff for a cause of action either
before or after filing of the suit. However, such claim should not be barred by
limitation.10

The effect of a counter-claim:-

i) it has the effect of a cross-suit and the court can pronounce a final Judgment both on the
original claim and the counterclaim;11
ii) the counter-claim of the defendant will be treated as a plaint;12
iii) in answer to the counter-claim, the plaintiff has the right to file a written statement;13
iv) the counter-claim will be decided on merits, even if plaintiff’s suit is stayed, dismissed,
discontinued or withdrawn;14
v) the defendant’s right to get a decree in respect of a counterclaim claimed in the written
statement is in way effected by the suit of the plaintiff;15

8
The ambit of Rule 6-A(1) can be explained by allowing a counter-claim for possession in a suit for plaintiff for
injunction.
9
Rohit Singh Vs. State of Bihar, AIR 2007 SC P.10
10
Mahender Kumar Vs. State of MP, AIR 1987 SC P.1395.
11
See Rule-6-A (2)
12
See Rule 6-A (4)
13
See Rule 6-A (3)
14
See Rule 6-D
15
See Rule 6-F

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 vi) in the event of the plaintiff not filing a reply to the counterclaim, the court may
pronounce Judgment against the plaintiff in respect of such counter-claim or make such
order in respect of counter-claim, as it thinks fit;16
vii) counter-claim of the defendant shall be treated as a plaint 17 and the rules governing the
plaints shall apply; and
viii) reply filed by the plaintiff in answer to a counter-claim shall be treated as a written
statement. The rules applicable for the written statement shall apply to such replies;18
ix) Counter-claim is substantially a cross-action;
x) Counter-claim need not arise out of same transaction;
xi) Counter-claim enables the defendant to enforce the claim against the plaintiff as an
independent action;
xii) In a counter-claim, the amount need not be recoverable on the date of the suit filed by the
plaintiff but may be recoverable on the date of the written statement. For this purpose the
defendant may amend the written statement with the leave of the court;19and
xiii) When the defendant claims an excess amount then the suit amount of the plaintiff, the
excess amount will be treated as a counter-claim and the rules relating to counterclaim
shall apply to the excess amount claimed by the defendant than the suit amount claimed
by plaintiff;20

Modes of setting up a counter-claim:- Looking to the scheme of Order VIII as amended by Act
No. 104 of 1976, Supreme Court of India in the case of Ramesh Chand Ardawatiya vs Anil
Panjwani held, “we are of the opinion, that there are three modes of pleading or setting up a
counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a
counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against
the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a
counter-claim may be preferred by way of amendment incorporated subject to the leave of the
Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a
subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to
Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting
16
Rule 6-E.
17
Rule 6 –A(4).
18
Rule 6-G.
19
Ramesh Chand Vs. Anil Punjwani, AIR 2003 SC 2508.
20
Anand Enterprises Vs. Syndicate Bank, AIR 1990 Kant P.175.

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in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of
amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9
of the CPC if sought to be placed on record by way of subsequent pleading.”
 In conclusion, it may be stated that the Amendment CPC of 1976 conferred benefits on
the courts as well as the parties.
 The courts are enabled to avoid delay and to prevent multiplicity of suits.
 The court are enabled to decide the claims of the plaintiff and defendants on the footing
of equality and expeditiously.
 The pecuniary jurisdiction of the courts and their power to try the case when the suit of
the plaintiff was filed is protected as thus the course of justice remains unaffected.
 Time-barred counter-claims cannot be entertained. This is to ensure that barred claims
under Limitation Act shall not be allowed and therefore the counter-claims are confined
to really and legally enforceable rights.
 The right of the defendant to secure his rights in a counterclaim is kept intact and in no
way affected by the dismissal, withdrawal or otherwise of plaintiff’s suit. In other words,
counter-claims are treated as independent and separate claims.
 Counter-claim should satisfy the rules relating to filing of plaint.
 Plaintiff failing to file a reply to the counter-claims will be fatal as the court will decide
the counter-claims on merits.
 It is hoped that the courts will keep in mind the ruling of the apex as well as High Courts
and more specially Rules 6A to G introduced on the basis of Amendment Act 1976, to
ensure fair and substantial justice to the parties.

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