By Meher Sunil Dabrai
Introduction
We all know that a petition is a formal written request, signed by the person or the people filing it appealing to an authority in respect of a particular cause (usually a court). This petition is then delivered to the respondents, that is, the person or people against whom it is filed.
Following this, the respondents appear in the court and file their reply to the petition which is known as a written statement.
The respondents may simply deny the allegations made against them in their written statement. Apart from merely denying the allegations made against them, the respondents may also make counter allegations against the petitioners. These counter allegations are known as counter claims.
In simpler terms, a counter claim can be defined as a claim made to offset another claim in legal action. It may also be considered as a cause of action against the Plaintiff but in favor of the Defendant.
Legal provisions
Order 8 Rule 6A of the Civil Procedure Code, 1908 (hereinafter as CPC) talks about the filing of a counterclaim by the Defendant. The provision states that along with the right to claiming a set off, the defendant in any civil suit also has the right to make claims in respect of a cause of action accruing to the defendant against the plaintiff.
The provision states that this may be done before the time limit prescribed by the law for the defendant to deliver his defense has expired.
A counter claim has the same effect as a cross suit so as to enable the Court to pronounce a final judgement to the original claim as well as the counter claim in the same suit so as to avoid the waste of judicial time and machinery.
A counter claim has the same legal standing as a plaint in itself. This means that a counter claim shall be treated as a plaint in itself and is also governed by the rules applicable to a plaint as stated under Rule 6A. Despite this, Rule 6C gives the plaintiff a right to contend that the claim raised by the defendant should not be disposed of by way of a counter claim but instead in an independent suit.
The plaintiff has the right to make this contention by filing an application at any time before the framing of issues is done by the court in a particular case. Following this, the court may exclude the counter-claim as a separate suit if it thinks fit.
Rule 6D states that if the defendant sets up a counter claim and the suit originally filed by the plaintiff is discontinued, dismissed or withdrawn, the counter-claim will continue to proceed as it has the same standing as a regular plaint.
Rule 6B mentions that when a defendant seeks to rely upon any ground a supporting right to counter claim, he has to specifically state that he is doing so by way of counter claim in the written statement filed by him.
As required by Rule 6E, if the plaintiff makes a default in replying to the counter-claim filed by a defendant, the court may pronounce a judgement against the plaintiff in relation to the counter-claim made against him or make such order in relation to the counter-claim as it deems fit.
Rule 6G supports this by stating that the rules relating to a written statement by a defendant shall apply to a written statement filed as a reply to the counter claim.
Difference between counter claim and set off
| Counter claim | Set off |
| Counterclaim has no classification or types | Set off can be a legal set off or an equitable set off |
| Counterclaim is a substantial cross action | Set off is a statutory defense to a plaintiff’s action |
| Counterclaim need not arise from the same transaction mentioned in the plaint | Set off must be for the same transaction or it must be for an ascertained sum whereas a counterclaim is a substantial cross action |
| Counterclaim must be recoverable before the date of the written statement | Set off must be recoverable on the date of the suit |
| Counterclaim is a weapon of offense which enables the defendant to enforce the claim against the plaintiff effectively as an independent action | Set off is a ground of defense to the plaintiff’s action |
Case laws
- Jag Mohan Chawla v. Dera Radha Swami Satsang [1]
The court observed that the only limitation for filing a counter claim is that the cause of action should arise before the time fixed for filing the written statement expires. The Court also held that the defendant may set up a cause of action which has accrued to him in the institution of the suit.
The counter claim will be expressly treated as a cross suit with the same legal standing as a plaint including the duty to avert the cause of action and even the payment of the requisite court fee required for a plaint thereon.
In other words, the defendant can claim any right by way of a counterclaim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without the defendant having to file a separate suit.
- Gurbachan Sigh v. Bhag Singh [2]
The Apex court held that by laying the counterclaim, the fiscal jurisdiction of the court cannot be denied and the power to try the suit that is already being entertained cannot be taken away by accepting the counterclaim beyond its pecuniary jurisdiction.
The Court observed that in a suit for injunction, a claim for possession can also be entertained under Order 8 Rule 6(A) of the Civil Procedure Code.
- Mohan Lal v. Bhawani Shankar[3]
The court observed that the only limitation is that the cause of action for a counterclaim should arise before the time fixed for the filing of the written statement expires. The defendant may set up a cause of action which may have accrued to him even after the institution of the suit.
The counter claim is then expressly treated as a cross suit with all the credentials of pleadings as a plaint including the duty to avert his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding, the court decided to try the suit and the counterclaim in the same suit and cross suit and then have them disposed of in the same trial.
In simpler words, the defendant may claim any right by way of a counter claim in respect of any cause of action accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action included without the defendant having to file a separate suit.
- Bank of Baroda v. Gurcharan Singh[4]
It was held that in a suit filed for recovery of money, a counter claim cannot be set up after the filing of a written statement particularly in the name of amending the written statement to add a counter claim to it.
- Pathrose Samuel & Anr v. Karumban Parameshwaran[5]
It was held that a counter claim is a weapon of offense and enables a defendant to enforce a claim against the plaintiff as effectively as an independent class action suit. It need not be an action of the same nature as the original action or even analogous to it. The counter claim has to be one that can be entertained by the Court in India.
Conclusion
The effect of a counter claim is to make sure that if a plaintiff is in the wrong, the defendant has the right to make claims against the plaintiff resulting in a cross action and acquire a common judgement. Its main purpose is to save the time of the court and assist in passing a single judgement for separate causes of action.
A counter claim has the same legality as that of an original plaint. Therefore, in the event that a plaint is withdrawn or dismissed, the judicial proceedings for the counter claim will continue as it becomes the plaint in itself in such a situation.
The defendant to a counterclaim is also required to file his written statement to the counterclaim. Thus, a counter claim is popularly called a cross suit. In essence, a set off is merely a form of defense in which no action may be taken against the plaintiff while a counter claim is a substantially a cross suit and the court will have the right to pass orders against the plaintiff or the defendant or even both after the facts have been thoroughly examined.
It must be duly noted that the filing of a counter claim is bound by limitation. This means that it can be filed at any time in the suit before the issues are framed by the court. A counter claim filed after the framing of issues may not be entertained by the court.
References
- Jag Mohan Chawla v. Dera Radha Swami Satsang AIR 1996 SC 2222 ↑
- Gurbachan Singh v. Bhag Singh AIR 1996 SC 1087 ↑
- Mohan Lal v. Bhawani Shankar AIR 2002 Raj 144 ↑
- Bank of Baroda v. Gurcharan Singh AIR 1986 P & H 252 ↑
- Pathrose Samuel & Anr v. Karumban Parameshwaran AIR 1988 Ker163 ↑