2020 SCeJ 68

SUPREME COURT OF INDIA

Present: Justice Rohinton Fali Nariman and Justice S. Ravindra Bhat, JJ.

ASHOK KUMAR KALRA – Petitioner,

Versus

WING CDR SURENDRA AGNIHOTRI and others  – Respondent.

Petition(s) for Special Leave to Appeal (C) No(s). 23599/2018

Civil Procedure Code, 1908 (V of 1908), Order VIII Rule 6A – Counter-claim was filed after the issues were framed, the said counter-claim  cannot  be  filed  as  per  the  law  laid  down  in Ashok  Kumar  Kalra  v.  Wing  Cdr.  Suren  dra  Agnihotri  &  Ors.,  2019 (16) Scale 544 – However,  it  will  be  open  for  the  petitioner  to  file  a  fresh  suit  based on the cause of action in the counter-claim if it is otherwise permissible in law.2020 SCeJ 68

Cases referred to:

1. 2019 (16) Scale 544, Ashok Kumar Kalra  v.  Wing  Cdr.  Surendra  Agnihotri

(Arising out of impugned final judgment and order dated 01-05-2018 in CR No. 253/2009 passed by the High Court Of Judicature At Allahabad)

Mr. K.K. Tyagi, Mr. Iftekhar Ahmed, Mr. Sarvam Ritam Khare, AOR for petitioner. Mr. Dinesh Dwivedi, Sr. Adv., Mr. Syed Hasan Isfahani, Mr. Rohit Kumar Singh, AOR, Mr. Krishnam Mishra, Mr. Nishant Singh, for respondents.

ORDER

(8th January, 2020) –

1. Heard the learned counsel appearing for the parties.
2. Application for deleting  the  names  of  respondent  Nos.  3  &  4 for the array of parties is allowed.
3. We have gone through the judgment of the three-Judge Bench in Ashok Kumar Kalra  vs.  Wing  Cdr.  Surendra  Agnihotri  &  Ors.,  2019 (16) Scale 544, in particular, para 20 which states as follows:-

 “20. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim 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 counter-claim 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 counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:

1. Period of delay.
2. Prescribed limitation period for the cause of action pleaded.

iii. Reason for the delay.

1. Defendant’s assertion of his right.
2. Similarity of cause of action between the main suit and the counterclaim.
3. Cost of fresh litigation.

vii. Injustice and abuse of process.

viii. Prejudice to the opposite party.

1. and facts and circumstances of each case.
2. In any case, not after framing of the issues.”
3. Given the fact that on the facts of the present case, a counter-claim was filed after the issues were framed, the said counter-claim cannot be  filed  as  per  the  law  laid  down  by  this  judgment. Consequently,  the  Special  Leave  Petition  is  dismissed.
4. However, it will  be  open  for  the  petitioner  to  file  a  fresh  suit  based on the cause of action in the counter-claim if it is otherwise permissible in law.
5. Pending applications, if any, stand disposed of.

SS                                –      Petition dismissed.