Understanding Counter-Claims
Tejaswita 15 Oct 2016

Understanding Counter-Claims

Consider a situation where a suit is filed by the plaintiff against a defendant and this defendant is called upon to reply to the case by way of filing a written statement. Here, what if the defendant has his own claim against the plaintiff and files his own suit against him?

He can do so by filing a counter-claim. The counterclaim is more or less a cross-suit and it is dealt as a plaint in a cross suit by virtue of the Order 8 Rule 6 A(2) of the Code of Civil Procedure 1908. Further cross suit is nothing but a suit filed by the defendant against the plaintiff in a given case.

This rule says that a counter claim would have the effect as a cross-suit so that the court is able to adjudicate and give its judgment in the same suit both on the original claim and on the counter claim. It is a cross- action and not a simple defense to the case of the original plaintiff. It is a plaint governed by the rules of the pleadings of the plaint.

In lay terms, in a counterclaim, the defendant of the first suit becomes the plaintiff while the plaintiff in the original suit becomes the defendant who is now required to file a written statement in answer to the counterclaim of the original defendant.

Right of the defendant to file a counter-claim is statutory. This means that in the absence of the provision in the statute book, a counter -claim cannot be allowed. A defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is not related to cause of action alleged by the plaintiff.

It has been the view in Jag Mohan Chawla v. Dera Radha Swami Satsang, (1996) 4 SCC 699 that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver 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 and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial.


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