Order VIII Rule 6 CPC | Can't Reject Counter Claim If Omissions Pointed Only At Appellate Stage, Not During Trial: Kerala High Court

Justice A. Badharudeen observed that if the omissions in counterclaims are pointed out at the appellate stage after the trial, then it will not be grounds to reject the counterclaims and such omissions shall be ignored by the Appellate Court.

“It is true that when the statute mandates the form and content of a counter-claim, the counter-claim shall be in the said format and any omission in complying the rules in the form and content of the counter-claim, that should be raised before the trial court by the adverse party so as to get the defect cured, since the same is a curable irregularity. If omissions of such a nature are pointed out after a full-fledged trial before the first or second appellate court, the same shall not be a ground to reject the counter-claim and such omission to be ignored in the interest of justice.”

The Present Regular Second Appeals were filed by the plaintiffs against the dismissal of their suit for declaration of title and seeking a permanent prohibitory injunction against the defendants. On the other hand, the defendants filed counter claims stating absolute title over the property and for its recovery of possession. The counter claims of the defendants were decreed in part and the suit was dismissed. The Appellate Court upheld the decision of the Trial Court against which second appeals were preferred before the High Court.

The counsel for the plaintiffs submitted that the counter claims filed by the defendants were not in conformity with the procedure mandated under Order 8 Rule 6B read with Order 7 of CPC. The Counsel for the defendants denied this argument and submitted that the counter claims filed by the defendants were in accordance with Order 8 Rule 6B read with Order 7 of CPC.

The Court considered the procedure to be followed under CPC for filing counter claims and whether any minor omissions would lead to dismissal of the counter claim.

Order 7 pertains to the procedure followed in filing plaints and Order 8 pertains to written statements, set off and counter claims. Order 8 Rule 6A to 6G of CPC deals with counter claims. Counter claims are filed by the defendants in a suit against the claim of plaintiffs. The Court noted that counter claims shall have the same effect as that of a cross suit thus enabling the court to pronounce a final judgment in the same suit, in both the original claim of the plaintiff and counter claim of the defendant. Further, the Court examined Order 8 Rule 6A to 6G of CPC and culled out the following points:

• the defendant can file a separate counterclaim even after filing a written statement under Order VIII Rule 6A(1) by relying upon Mahendra Kumar V State of M.P. (1987)
• defendant can raise a counter claim in the written statement as of right and also by amending the written statement by relying upon Kerala Nadavathur Mujahideen V Hussain Madavoor (2007)
• if the cause of action arose before filing the written statement, then the defendant can file a counter claim by amending the written statement or as a separate claim by relying upon Xavier V Maruvakkad Padasekhara Karshaka Union (2015)
• Under Order 8 Rule 6A (4), the counter claim filed by the defendant shall be treated as a plaint and rules applicable to the plaint under Order 7 shall be followed

The Court found that the defendant in counter claim omitted to give the details of the name and address of the parties as in a plaint. The Court stated that apart from this omission, the counter claim filed by the defendants is in tune with the procedure prescribed under the CPC. It noted that the said omission was brought before the High Court in the second appeal after the trial was over before the trial court and first appellate court. The Court held that such omissions in counter claims brought before the Courts at the appellate stage can be ignored in the interests of justice. It noted that omission in counter claim found at the appellate stage shall not be a ground for the plaintiffs to win the suit as against the defendant.

“Therefore, the questions of law raised in this appeal are answered as above, holding that the plaintiff herein shall not succeed in this appeal merely on the basis of omissions pointed out in the counter- claim filed by the 1st defendant.”

On the above observations, the Court dismissed the second appeal and held that the defendant was entitled to title and possession over his property.

Counsel for the plaintiff: Advocate R Sunil Kumar

Counsel for the respondent: Advocate Hena Bahuleyan

Citation: 2023 LiveLaw (Ker) 483

Case title: Anil Kumar V Sunil Kumar

Case number: RSA No. 223 Of 2023, RSA NO. 395 OF 2023

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