QUESTION | Explain the meaning, nature, scope and modes of setting up counter claim. Who may file counter claim and upto which stage a counter claim may be set up? Discuss the effect of counter claim.
How to answer this question?
This question has many micro parts – make sure not to miss any content. But broadly it can be attempted in two parts:
First part- Discuss the meaning of counter claim, the relevant provisions dealing with counter claim, its nature and scope, then start discussing about ways to set aside counter claim and under which Rules, person eligible to file a counter claim, at what stage it can be set up.
In second part- Discuss the effects and relevant cases.
Discuss the relevant landmark case.
RELEVANCE OF THE QUESTION: This question was asked in MPJS 2019.
POINTS TO NOTE
• Meaning of Counter-Claim.
• Nature & Scope – Apt rule & Order of CPC needs to be mentioned including 1976 Amendment.
• Modes of Setting up – 3 Modes.
• Persons can file – Rule 6-A(1)
• Upto what stage
• Effect - R-6-A(2)
Of Counter-claim has to be answered.
MEANING : Counter-claim is defined as, “a claim made by the defendant in a suit against the plaintiff.
NATURE : Counter-claim is an independent claim and separate from plaintiff’s claim.
SCOPE : Rule 6-A to 6-G of Order VIII deals with Counter-claim. These rules were added by the Amendment Act of 1976. This was done on the recommendation of Law Commission in order to avoid prolonged trials and unnecessary multiplicity of litigations.
MODES OF SETTING UP COUNTER-CLAIM: Counter-claim can be set-up in the following three ways:
i. In written statement under Order VIII Rule 1.
ii. By amendment in written statement with the leave of court and setting up counter-claim, and
iii. In a subsequent pleading under Order VIII Rule 9.
WHO MAY FILE COUNTER-CLAIM AND UPTO WHAT STAGE? Rule 6-A(1), the defendant may set up by way of counterclaim against the claim of the plaintiff
• any right or claim in respect of action
• accruing to the defendant against the plaintiff
• either before or after the filing of the suit
• but before the defendant has delivered his defence or before the time fixed for delivery of his defence has expired.
• Such counterclaim, however, should not exceed the pecuniary limits of the jurisdiction of the court
EFFECT OF COUNTER-CLAIM :
• Such counterclaim has the effect of a cross-suit and the court can pronounce a final judgment both on the original claim and the counterclaim. [R6-A(2)]
• Then counterclaim of defendant will be treated as plaint and therefore, plaintiff can his written statement. [R6-A(3)& (4)]
• Any ground relied upon be specifically stated. (R6-B)
• Therefore, the status of suit originally filed by plaintiff, be it - stayed, discontinued, dismissed or withdrawn, will not affect the counterclaim [R6-D]and will be decided on merits and can be decreed(R6-F)
• A reply in answer to counterclaim shall be treated as a written statement and such rules of written statement will be applicable. (R6-G)
• If plaintiff does not reply to counter-claim of defendant, the court may pronounce the judgment against plaintiff or make such order deems fit. (R6-E)