Order 8, Rule 6A of The Code of Civil Procedure, 1908

At the outset, there is no gainsaying that procedural justice is imbibed to provide further impetus to substantive justice. On the other hand, we must be mindful of the legislative intention to provide for certainty and clarity. In the name of substantive justice, providing unlimited and unrestricted rights in itself will be detrimental to certainty and would lead to the state of lawlessness. In this regard, this Court needs to recognize and harmoniously stitch the two types of justice.

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Hon’ble Justice N.V. Ramana

Ashok Kumar Kalra, [SLP (Civil) No. 23599 of 2018]

Pointing DownThere cannot be any hard and fast rule to say that in a particular time the counter­-claim has to be filed, by curtailing the discretion conferred on the Courts. Order 8, Rule 6A does not put an embargo on filing the counter-claim after filing the written statement. It is not mandatory for a counter­-claim to be filed along with the written statement. Courts in such cases have the discretion to entertain filing of the counter-­claim.  In any case, not after framing of the issues and after the suit has proceeded substantially.

In exceptional circumstances, to prevent multiplicity of proceedings and a situation of effective re­trial, the Court may entertain a counter-­claim even after the framing of issues, so long as the Court has not started recording the evidence. This is because there is no significant development in the legal proceedings during the intervening period between framing of issues and commencement of recording of evidence. If a counter-­claim is brought during such period, a new issue can still be framed by the Court, if needed, and evidence can be recorded accordingly, without seriously prejudicing the rights of either party.Pointing Up.png

Hon’ble Justice Mohan M. Shantanagoudar

Ashok Kumar Kalra, [SLP (Civil) No. 23599 of 2018]

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The only method of harmonizing the underlined is by holding that if ‘no significant development’ has happened in the suit, the suit has ‘not proceeded substantially’. Harmony.jpeg