The Supreme Court, in Rajul Manoj Shah Alias Rajeshwari Rasiklal Sheth v Kiranbhai Shakrabhai Patel & Anr (2025), recently reiterated that a counterclaim under order VIII rule 6A of the Code of Civil Procedure, 1908 (CPC), can only be filed against the plaintiff, setting aside the Gujarat High Court decision that had allowed a defendant to file a counterclaim against a co-defendant.
In this case, the undivided suit property was jointly owned by the appellant and her sister-in-law (original defendant 1). In January 2012, defendant 1 agreed to sell a portion of the suit property in favour of defendant 2, against which a suit for declaration was filed by the appellant, alleging that defendant 1 had no right to transfer the property without her consent, and that the agreement to sell was void.
Subsequently, the original defendant 1 died while the suit was pending, after which an application for her deletion from the array of parties was allowed. Defendant 2 then moved an application for substitution of original defendant 1 with a court-appointed officer (nazir) under order XXII rule 4A, which was rejected by the trial court but later allowed by the high court.
Further, defendant 2 filed an application to amend the written statement by adding a counterclaim seeking execution of the sale deed for the undivided share in furtherance of the agreement to sell, and for partition of the suit property.
The trial court dismissed the amendment application on 5 August 2021, holding that a counterclaim under order VIII rule 6A must be against the plaintiff’s claim, and that a defendant cannot file a counterclaim directed solely against a co-defendant.
The Gujarat High Court set aside the trial court’s decision and permitted the counterclaim, reasoning that the reliefs were not sought solely against a co-defendant but were also directed against the nazir and the plaintiff, primarily the relief of partition, making the counterclaim maintainable.
The Supreme Court set aside the high court’s order and restored the trial court’s refusal to permit the counterclaim. Relying on Rohit Singh & Ors v State of Bihar (2006), the court held that order VIII rule 6A permits a defendant to set up a counterclaim “against the claim of the plaintiff”. A counterclaim directed solely at a co-defendant (here, the nazir, or estate of deceased defendant 1) is not maintainable.
The court also held that a partition decree presupposes an established right in the claimant, and as defendant 2 had no enforceable right against the estate until he succeeded on that front, the prayer for partition could not validate the counterclaim.
The Supreme Court concluded that, under order VIII rule 6A of the CPC, a counterclaim must be directed against the plaintiff and cannot be raised solely against a co-defendant. Hence, the high court’s order was set aside, and the trial court’s rejection of the counterclaim was rightly upheld.
The dispute digest is compiled by Numen Law Offices, a multidisciplinary law firm based in New Delhi & Mumbai. The authors can be contacted at support@numenlaw.com. Readers should not act on the basis of this information without seeking professional legal advice.
