Counter-claims cannot be directed solely against co-defendants and cannot be introduced after framing of issues; appointment of a court officer does not generate a fresh cause of action — Supreme Court clarifies Order VIII Rule 6A CPC

Introduction

This appeal from the High Court of Gujarat presented two recurring procedural questions in civil practice: (i) whether a defendant can maintain a counter-claim under Order VIII Rule 6A of the Code of Civil Procedure, 1908 (CPC) that is directed only against a co-defendant and not against the plaintiff, and (ii) whether a counter-claim can be entertained after the court has framed issues and the suit has proceeded substantially. A further nuance arose—does the appointment of a court officer (Nazir) to represent a deceased defendant under Order XXII Rule 4A CPC supply a fresh cause of action or otherwise relax these constraints?

The dispute arose from a family property in Ahmedabad. The plaintiff, daughter of the original owner, sued in 2012 to declare an agreement to sell dated 21.10.2011 allegedly executed by her sister-in-law (defendant no.1) in favour of the purchaser (defendant no.2) as null and void, and to injunct dealings with the undivided joint property without her consent. Defendant no.1 died in 2013. In 2020, the High Court, on consent, appointed the City Civil Court’s Nazir as an administrator to represent the deceased defendant’s estate. In 2021, defendant no.2 sought to amend his written statement to introduce a counter-claim for (a) specific performance of the 2011 agreement against the Nazir representing the deceased vendor, and (b) partition under the Partition Act, 1893.

The trial court rejected the application as delayed, impermissible against a co-defendant, and prima facie barred by limitation. The High Court, exercising supervisory jurisdiction under Article 227, permitted the counter-claim, reasoning that the cause of action truly arose only after the Nazir’s appointment in 2020. The Supreme Court has now reversed the High Court, restoring the trial court’s order and clarifying critical principles under Order VIII Rule 6A CPC and the timing of counter-claims.

Summary of the Judgment

• A counter-claim under Order VIII Rule 6A CPC must be “against the claim of the plaintiff” and cannot be directed solely against a co-defendant. Relief incidentally against co-defendants may be permissible, but the counter-claim cannot be exclusively targeted at them. The Court reaffirmed Rohit Singh v. State of Bihar (2006) 12 SCC 734 and subsequent approvals.
• Courts should not permit counter-claims after issues are framed and the suit has proceeded substantially. The outer limit for entertaining counter-claims is pegged at the stage of framing of issues, consistent with Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri (2020) 2 SCC 394.
• Appointment of a court officer (Nazir) to represent a deceased defendant under Order XXII Rule 4A does not generate a new cause of action nor justify belated filing of a counter-claim. Cause accrual flows from the underlying transaction, not later procedural substitutions.
• A plea for partition cannot be sustained as a counter-claim when the claimant has yet to establish a right or title. Where the asserted right depends on first succeeding in specific performance against a co-defendant’s estate, the partition relief cannot bootstrap a defective counter-claim.
• The High Court’s exercise of Article 227 jurisdiction was unwarranted on these facts; it did not identify a jurisdictional error in the trial court’s order.
• Appeal allowed; High Court’s order set aside; trial court’s refusal to entertain the counter-claim restored. No order as to costs.

Factual and Procedural Timeline

• 21.10.2011: Agreement to sell executed by sister-in-law (defendant no.1) in favour of purchaser (defendant no.2) for her undivided share.
• January 2012: Plaintiff files suit for declaration and injunction, challenging the agreement and the right to alienate without her consent.
• 12.10.2013: Defendant no.1 dies; later, the plaintiff moves to delete her from the array and succeeds (24.10.2019).
• 15.11.2019: Trial court rejects defendant no.2’s bid to substitute a court officer for the deceased defendant.
• 10.02.2020: High Court, on consent, quashes the above orders and appoints the City Civil Court’s Nazir to represent the deceased defendant’s estate; plaintiff files amended plaint on 04.03.2020.
• 12.02.2019: Issues already framed (note the chronology: issues predate Nazir appointment).
• 26.07.2021: Defendant no.2 moves to amend written statement to add counter-claim seeking specific performance and partition.
• 05.08.2021: Trial court rejects the application (delay, maintainability against co-defendant, limitation).
• 16.01.2023: High Court under Article 227 allows the counter-claim, reasoning that cause of action arose post Nazir’s appointment.
• 12.09.2025: Supreme Court allows appeal, sets aside High Court’s order, and restores the trial court’s refusal.

Analysis

Precedents Cited and Their Influence

• Rohit Singh & Ors. v. State of Bihar (2006) 12 SCC 734: The Court held that a counter-claim “has necessarily to be directed against the plaintiff,” though incidental relief against co-defendants may be claimed. A counter-claim solely against co-defendants is impermissible. This principle directly controlled the present case because the specific performance relief was directed only at the co-defendant’s estate (represented by the Nazir).
• Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske (2023) 19 SCC 175 and Satyender v. Saroj (2022) 17 SCC 154: Both decisions reiterate the Rohit Singh rule that a counter-claim cannot be raised against co-defendants alone under Order VIII Rule 6A CPC. The Supreme Court relied on these to confirm that the relief of specific performance could not be advanced by counter-claim here.
• Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri (2020) 2 SCC 394: The Court set a pragmatic outer limit: while the cause of action for counter-claim may accrue before or after the suit (but before delivery of defence/time to deliver defence), the trial court’s discretion to accept a belated counter-claim is limited, and “in any case” the counter-claim should not be permitted after issues are framed and the suit has proceeded substantially. The Supreme Court transposed this guidance to reject a counter-claim filed two years after issues were framed.
• Jag Mohan Chawla v. Dera Radha Swami Satsang (1996) 4 SCC 699: Recognized that counter-claims are treated as cross-suits and aim to avoid multiplicity of proceedings. The present Court acknowledged this purpose but emphasized it cannot override statutory text and procedural discipline.
• Munishamappa v. M. Rama Reddy, 2023 SCC OnLine SC 1701: Affirmed that partition presupposes an established right or title; a claimant must first establish entitlement. The Court applied this to reject the attempt to use a partition plea to salvage an otherwise impermissible counter-claim.
• Salem Advocate Bar Association (II) v. Union of India (2005) 6 SCC 344: The Court cited the balancing of speedy justice and effective justice. Even so, procedural relaxation cannot extend to permitting counter-claims beyond the issues-framed stage.
• Kishore Kumar Khaitan v. Praveen Kumar Singh, AIR 2006 SC 1474: High threshold for interference under Article 227—meant for jurisdictional errors or perversities, not for reappreciation of discretionary procedural orders absent jurisdictional fault. The Supreme Court found the High Court’s intervention unsustainable as it did not identify a jurisdictional error in the trial court’s refusal.

Legal Reasoning Applied by the Court

• Text and structure of Order VIII Rule 6A CPC:
  • The rule allows a defendant to “set up, by way of counter-claim against the claim of the plaintiff, any right or claim … accruing to the defendant against the plaintiff” (emphasis added). The Court read this as a textual requirement that the counter-claim must be directed against the plaintiff. Relief incidentally impacting co-defendants is possible, but the essential direction must be toward the plaintiff. Relief solely against a co-defendant/estate is outside the rule’s scope.
  • Treating counter-claims as cross-suits (Rule 6A(2)) does not rewrite the parties against whom they can be maintained. The cross-suit effect is about procedural consolidation and finality, not about expanding substantive targets for counter-claims.
• Specific performance claim was exclusively against a co-defendant:
  • Defendant no.2’s counter-claim sought directions to the Nazir (representative of the deceased defendant no.1) to accept consideration and execute a sale deed pursuant to the 2011 agreement. No substantive relief was claimed against the plaintiff. Under Rohit Singh and its progeny, such a counter-claim is not maintainable.
  • The plea that plaintiff would be a necessary party in an independent specific performance suit does not convert the claim into one “against the plaintiff” for Order VIII Rule 6A purposes.
• Partition relief could not bootstrap an absent title:
  • Partition presupposes a legally recognized share. Defendant no.2 had no title unless and until he succeeded in specific performance against the deceased vendor’s estate. Without first establishing that right, the partition relief could not stand independently as a counter-claim against the plaintiff.
• Timing: Counter-claims after framing of issues are impermissible:
  • Issues were framed on 12.02.2019; the counter-claim application was moved on 26.07.2021. The Court applied Ashok Kumar Kalra to hold that defendants cannot be permitted to file counter-claims after issues are framed and the suit has proceeded substantially, even if the Limitation Act period has not expired. The outer limit is pegged to the issues-framed stage, and trial courts must protect the principle of speedy justice.
  • This does not render limitation irrelevant; rather, limitation is a floor, not a ceiling. Even if within limitation, the court may refuse if the stage of the suit and prejudice factors militate against it.
• Appointment of the Nazir did not create a fresh cause of action:
  • The High Court reasoned that cause of action for counter-claim truly arose post 10.02.2020 upon appointment of the Nazir. The Supreme Court disagreed: cause accrues from the underlying contract and denial/repudiation, not from procedural substitution. The plaintiff’s 2012 suit itself put the contract in issue. Defendant no.2’s inaction (including during the vendor’s lifetime) could not be cured by later appointment of a representative.
• Article 227: scope of supervisory jurisdiction:
  • The trial court’s refusal rested on recognized principles: maintainability, delay, and limitation. The High Court did not identify any jurisdictional error, perversity, or patent illegality. Interference under Article 227 was thus unwarranted.

Impact and Practical Implications

• Bright-line procedural discipline on counter-claims: Litigants must plead counter-claims, if any, at the earliest—ideally with the written statement or, in any case, before issues are framed. Post-issues counter-claims will ordinarily not be entertained.
• Substantive direction of counter-claims: Counsel must ensure that the counter-claim is directed against the plaintiff. Relief primarily or exclusively against co-defendants belongs in a separate, independent suit. If incidental relief against co-defendants is necessary, it may be folded into a counter-claim directed at the plaintiff, subject to law.
• No “cause-of-action reset” via procedural substitutions: Substitutions under Order XXII Rule 4A (e.g., appointment of a Nazir/administrator) do not refresh or postpone cause of action for counter-claims. Parties should not wait for such procedural events to initiate substantive claims.
• Specific performance strategy: Purchasers seeking specific performance against a vendor (or the vendor’s estate) who is a co-defendant in a pending suit should file an independent specific performance suit within limitation and seek, if appropriate, consolidation or joint trial to avoid inconsistent findings—rather than attempting an impermissible counter-claim.
• Partition claims: A partition plea cannot be used to bypass the need to first establish title or contractual entitlement. Courts will not allow partition to bootstrap an absent right.
• Trial court gatekeeping: Trial courts are reaffirmed in their discretion to refuse belated counter-claims in the interest of procedural economy and speedy trial, particularly post-issues framing.

Complex Concepts Simplified

• Counter-claim (Order VIII Rule 6A CPC): A defendant’s claim against the plaintiff, tried within the same suit, treated as a cross-suit. It aims to resolve all disputes between the same parties efficiently. It must be directed against the plaintiff; purely co-defendant-directed counter-claims are not maintainable.
• Set-off vs. counter-claim: Set-off neutralizes or reduces the plaintiff’s claim using a liquidated, ascertained cross-demand. A counter-claim is broader and may comprise any claim the defendant has against the plaintiff, whether or not connected to the plaintiff’s claim, but still subject to Order VIII Rule 6A’s directionality against the plaintiff.
• Framing of issues: The court identifies the material propositions of fact and law in dispute. As per Ashok Kumar Kalra, this stage is the practical outer limit for entertaining counter-claims.
• Order XXII Rule 4A CPC: Allows the court to appoint a person (e.g., Nazir) to represent the estate of a deceased defendant where legal representatives are not brought on record. It is a procedural device ensuring the suit does not abate, not a device to generate new causes of action.
• Specific performance (Article 54, Limitation Act, 1963): An equitable remedy to compel performance of a contract, generally to be claimed within three years from the date fixed for performance or, if none, when performance is refused. Filing within limitation does not override procedural constraints on counter-claims.
• Partition: The division of joint property into separate shares; it presupposes the claimant has an existing share or title. One cannot seek partition without first establishing an entitlement.
• Article 227 of the Constitution: High Courts’ supervisory jurisdiction to keep lower courts within bounds of their authority. It is not an appellate power and is sparingly exercised to correct jurisdictional errors or perversities.

Key Passages from the Judgment

• On directionality of counter-claims: “A counter claim has necessarily to be directed against the plaintiff in the suit…a counter claim directed solely against the co-defendants cannot be maintained” (reaffirming Rohit Singh).
• On timing: “Defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially” (following Ashok Kumar Kalra).
• On Nazir appointment: The High Court’s view that cause of action arose only after Nazir’s appointment lacked foundation; cause accrues from the transaction and its repudiation, not from procedural substitutions.

Observations on Unaddressed or Ancillary Points

• Limitation for specific performance: The trial court reasoned the specific performance claim was time-barred under Article 54. The Supreme Court did not finally adjudicate limitation because it found the counter-claim itself non-maintainable and impermissibly delayed post-issues; but its narrative suggests agreement with the trial court’s approach.
• Law Commission reliance: Defendant no.2 invoked segments of a Law Commission Report to support a broader reading of Order VIII Rule 6A. The Court did not adopt this reading, holding fast to the rule’s text and prior precedent.

Conclusion

This decision restates and sharpens two vital procedural guardrails governing counter-claims in Indian civil litigation: (i) a counter-claim must be directed against the plaintiff and cannot be exclusively aimed at co-defendants, and (ii) courts should not entertain counter-claims after framing of issues and substantial progress in trial. The judgment also clarifies that the appointment of a court officer to represent a deceased defendant is a procedural expedient; it does not create or postpone cause of action for purposes of counter-claims or relax the discipline mandated by Order VIII Rule 6A and the Supreme Court’s timing doctrine in Ashok Kumar Kalra.

For practitioners, the message is straightforward: bring counter-claims early, and ensure they are genuinely against the plaintiff. If relief is primarily against a co-defendant (e.g., specific performance against the vendor’s estate), institute an independent suit within limitation and seek procedural coordination if necessary. Trial courts are encouraged to continue robust gatekeeping to prevent dilution of speedy justice through late-stage counter-claims, while preserving the counter-claim mechanism’s intended role in avoiding multiplicity when properly invoked.