VIJAY PRAKASH JARATH versus TEJ PRAKASHJARATH

Citation: [2016] 2 S.C.R. 91 · Decided: 01-03-2016 · Supreme Court of India · Bench: J.S. KHEHAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2016] 2 S.C.R. 91 
VIJAY PRAKASH JARATH 
A 
v. 
TEJ PRAKASHJARATH 
(Civil Appeal Nos. 2308-2309of2016 etc.) 
MARCHOl,2016 
B 
(JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.] 
Code of Civil Procedure, 1908- 0. VIII r.6A - Counter claim 
- When can be filed - Held: Cause of action in respect of which a 
counter claim can be filed, should accrue before the defendant has 
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delivered his defence - In the present case, cause of action for 
which counter-claim was filed. had arisen even before filing of the 
suit i.e. well before the defendant delivered his defence - Thus, it 
was well within the right of the defendants to file the counter-claim. 
Allowing the appeals,, the Court 
HELD: 1. A perusal of Sub-clause (1) of Section 6A of Order 
VIII CPC, leaves no room for any doubt, that the cause of action 
in respect of which a counter claim can be filed, should accrue 
before the defendant has delivered his defence, namely, before 
the defendant has filed a written statement. [Para 8] (97-H] 
2. The cause of action for which the counter-claim was filed 
in the present case, arose before the respondentcplaintiff filed 
the suit. It is therefore apparent that the appellants were well 
within their right to file the counter-claim. There was no 
justification whatsoever for the High Court to have declined, the 
appellant from filing his counter claim. It has also not been shown 
that any prejudice would be caused to the respondent-plaintiff 
before tl1ce trial court, if the counter-claim was to be adjudicated 
upon, along with the main suit. No serious injustice or irreparable . 
loss would be suffered by the respondent-plaintiff in the present 
case. [Paras 8 and 9] [98-E, H; 99-Aj 
Bo/lepanda P. Poonacha & Anr vs. K.MMadapa 2008 
(4) SCR 1011 : (2008) 13 SCC 179 - relied on. 
Rohit Singh & Ors. vs. State ofBihar & Ors. 2006 (7) 
Suppl. SCR 278 : (2006) 12 SCC 734 - distinguished. 
91 
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E 
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92 
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SUPREME COURT REPORTS 
Case Law Reference 
2006 (7) Suppl. SCR 278 
2008 (4) SCR, 1011 
distinguished. 
relied on. 
[2016) 2 S.C.R. 
Para2 
Para 7 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2308-
B 
2309of2016 
c 
From the Judgment and Order dated 02.01.2008 and 13.02.2008 
of the Single Judge of the High Court ofUttarakhand at Nainital in Civil 
Misc. Writ Petition No. 1266 of2001 and Recall Application No. 94 of 
2008 in Writ Petition Misc. Single No. 1266 of2001 
WITH 
C. A. NO. 2310 OF 2016 
K. Raghavacharyulu, Kailasll Pandey, A. Dey, Ranjeet Singh, K. 
V. Sreekumar, Advs. for the Appellant. 
D 
Dr. Meera Agarwal, Ramesh Chandra Mishra, Amarjeet Singh 
E 
F 
Dheman, Advs., for the Respondent. 
The Judgment of the Court was delivered by 
JAGDISH SINGH KHEHAR, J. Civil Appeal Nos.2308-
2309 of 2016 (Arising out of SLPCC)Nos.8536-8537 of 2008) 
I.The respondent before this Court - Tej Prakash Jarath filed 
Suit No.608 of 1992 on 09.11.1992. In the aforesaid suit, defendants 
Nos.3 and 4- Om Prakash Jarath (the father of the plaintiff in the suit) 
and Vijay Prakash Jarath (the elder brother of the plaintiff) respectively, 
filed written statements on 11.11.1992. Thereupon, issues came to be 
framed on 18.10.1993. After the framing of the issues, the petitioners 
before this Court (i.e. defendant Nos.3 and 4 in the original suit), filed a 
counter-claim on 17 .06.1996 i.e. almost two and a half years after the 
framing of the issues. 
2. The trial court, vide its order dated 28. I 0.1996, accepted the 
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aforesaid counter-claim. The above order dated 28. I 0. 1996, came to 
be assailed by the respondent-plaintiff-Tej Prakash Jarath through Civil 
Miscellaneous Writ Petition No.1266 of2001, before the High Court of 
Uttarakhand at Nainital (hereinafter referred to as 'the High Court'). 
The High Court relying upon the judgment of this Court in Roh it Singh & 
H 
ors. vs. State of Bihar (Now State of Jharkhand) & Ors., (2006) 12 
VIJAY PRAKASH JARATH v. TEJ PRAKASH JARATH 
93 
[JAGDISH SINGH KHEHAR, J.] 
SCC 734, concluded, that the counter-claim filed by the petitioner-
A 
defendant Nos.3 and 4 before the trial court, was not legally acceptable. 
The order passed by the High Court dated 02.01.2008, recording the 
above conclusion, has been assailed through the instant special leave 
petitions. 
3.Leave granted. 
B 
4. Before adverting to the merits of the controversy, we would 
first endeavour to deal with the issues as to whether the High Court 
correctly applied the judgment rendered by this Court in Roh it Singh'
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