Order VIII Rule 6A CPC| Counter-Claim Cannot Be Made Solely Against A Co-Defendant: Supreme Court

The Court was hearing a civil appeal against a judgment of the Gujarat High Court, which had permitted one of the defendants to amend his written statement and file a counter-claim against a co-defendant in a suit seeking a declaration and injunction concerning a family property dispute.

A Bench comprising Justice Pamidighantam Sri Narasimha and Justice Joymalya Bagchi, while setting aside the order of the High Court, observed that “The relief of specific performance as sought to be raised by defendant no. 2 cannot be set up by way of a counter-claim since the same is not directed against the appellant/plaintiff, but is instead directed solely against the co-defendant. In view of this, defendant no. 2 is held to be disentitled to raise prayer of specific performance by way of counter-claim. This is simply not permissible, and this position is no more res-integra in view of the decision of this Court in Rohit Singh (supra).”

Senior Advocate Ritin Rai represented the appellant, while Advocate Pradhuman Gohil appeared on behalf of the respondent.

Background

The appellant had instituted a civil suit before the City Civil Court, Ahmedabad, seeking a declaration that her sister-in-law (Defendant no.1) had no right to transfer the joint family property and to annul an agreement to sell executed in favour of Defendant no.2.

During the proceedings, Defendant no.1 passed away, and the Nazir of the City Civil Court was appointed as her substitute. Several years later, Defendant no.2 applied to amend his written statement to include a counter-claim for specific performance of the agreement to sell and also sought partition of the property.

The Trial Court rejected the application, holding that a counter-claim cannot be directed against a co-defendant and that the relief was also barred by limitation. The Gujarat High Court, however, reversed this decision and permitted the counter-claim, reasoning that the cause of action arose upon the Nazir’s appointment as the legal representative.

Aggrieved, the appellant approached the Supreme Court.

Court’s Observations

While drawing a clear distinction between the nature of claims in the case, the Court ruled that a counter-claim for specific performance against a co-defendant could not be equated with the plaintiff’s declaratory relief. The Court stated, “Enquiry and trial arising out of a claim to enforce an agreement to sell is qualitatively different from the claim of a plaintiff seeking a declaratory decree against a defendant. The civil remedy that the appellant seeks, i.e., a declaration that his sister-in-law has no manner of right to alienate the property and therefore to annul the sale is very different from the attempted civil remedy through counter-claim for specific performance against a co-defendant.”

The Court also noted that the ancillary relief of partition could not sustain the counter-claim. Highlighting that such a claim would arise only if defendant no.2 first established rights in the property, the court held that “…defendant must first establish a right of claim over the property, which is absent till he succeeds against the estate of defendant no. 1 and only thereafter that the question of setting up a counter claim against plaintiff may arise. Thus, the submission that there is also a claim for partition must fail for the same reason.”

The Bench further recorded that issues had been framed as early as 2019, while the counter-claim was sought in 2021, nearly a decade after the institution of the suit.

Citing Rohit Singh Vs State of Bihar, in which the Apex Court had ruled that a counterclaim has to be directed against the plaintiff in the suit, and that by filing a counter-claim against a co-defendant, “ litigation cannot be converted into some sort of an interpleader suit…..”, the Bench allowed the appeal and set aside the Gujarat High Court’s order.

Conclusion

Allowing the appeal, the Court held that the High Court had erred in reversing the Trial Court’s rejection of the counter-claim. The order of the High Court was accordingly set aside.

Cause Title: Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel & Anr. (Neutral Citation: 2025 INSC 1109)

Appearances

Appellant: Senior Advocate Ritin Rai

Respondents: Advocate Pradhuman Gohil

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