Page No.# 1/11 GAHC010201272024 2026:GAU-AS:1773 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/404/2024 RAM SINGH CHOTRI AND 4 ORS. S/O- LATE JAGANNATH SINGH CHOTRI, R/O- VILL.- KATLICHERRA GRANT, P.O. AND P.S. KATLICHERRA, DIST. HAILAKANDI, ASSAM 2: DHARAM SINGH CHOTRI S/O- LATE JAGANNATH SINGH CHOTRI R/O- VILL.- KATLICHERRA GRANT P.O. AND P.S. KATLICHERRA DIST. HAILAKANDI ASSAM 3: BEER SINGH CHOTRI S/O- LATE JAGANNATH SINGH CHOTRI R/O- VILL.- KATLICHERRA GRANT P.O. AND P.S. KATLICHERRA DIST. HAILAKANDI ASSAM 4: JOYDIP SINGH CHOTRI S/O- LATE JAGANNATH SINGH CHOTRI R/O- VILL.- KATLICHERRA GRANT P.O. AND P.S. KATLICHERRA DIST. HAILAKANDI ASSAM 5: PUNOM SINGH CHOTRI S/O- LATE JAGANNATH SINGH CHOTRI R/O- VILL.- KATLICHERRA GRANT P.O. AND P.S. KATLICHERRA DIST. HAILAKANDI ASSA VERSUS Page No.# 2/11 HILAL UDDIN BARBHUIYA AND 6 ORS S/O- LATE AZIZUR RAHMAN BARBHUIYA, VILL.- DARIARGHAT GRANT, P.O. KARICHERRA, P.S. RAMNATHPUR, DIST. HAILAKANDI, ASSAM, PIN- 788165. 2:TAZAMUL ALI BARBHUIYA S/O- LATE AZIZUR RAHMAN BARBHUIYA VILL.- DARIARGHAT GRANT P.O. KARICHERRA P.S. RAMNATHPUR DIST. HAILAKANDI ASSAM PIN- 788165. 3:NUR UDDIN BARBHUIYA S/O- LATE AZIZUR RAHMAN BARBHUIYA VILL.- DARIARGHAT GRANT P.O. KARICHERRA P.S. RAMNATHPUR DIST. HAILAKANDI ASSAM PIN- 788165. 4:AHADUR RAHMAN LASKAR S/O- LATE ABDUL JOBBAR LASKAR VILL.- DARIARGHAT GRANT P.O. KARICHERRA P.S. RAMNATHPUR DIST. HAILAKANDI ASSAM PIN- 788165. 5:JAKIR HUSSAIN BARBHUIYA S/O- LATE SIRUJ ALI BARBHUIYA VILL.- DARIARGHAT GRANT P.O. KARICHERRA P.S. RAMNATHPUR DIST. HAILAKANDI ASSAM PIN- 788165. 6:MOINUL HAQUE BARBHUIYA S/O- LATE ABDUL JALIL BARBHUIYA VILL.- DARIARGHAT GRANT P.O. KARICHERRA P.S. RAMNATHPUR DIST. HAILAKANDI ASSAM Page No.# 3/11 PIN- 788165. 7:SHAMS UDDIN BARBHUIYA S/O- LATE ABDUL JALIL BARBHUIYA VILL.- DARIARGHAT GRANT P.O. KARICHERRA P.S. RAMNATHPUR DIST. HAILAKANDI ASSAM PIN- 788165 Advocate for the Petitioner : MR. A M S MAZUMDER, Advocate for the Respondent : MR M J QUADIR (R-1,2,3), AKHINUR ISLAM(R-1,2,3),MR. A K HANNAN(R-1,2,3) BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 10-02-2026 Heard Mr. A. M. S. Mazumder, learned counsel for the petitioner and Mr. M. J. Quadir, learned counsel for the respondent. 2. This is an application under Article 227 of the Constitution of India read with Sections 115/151 of the CPC challenging the impugned order dated 26.07.2024, passed by the learned Civil Judge (Sr. Div.), Hailakandi in Misc Case No.168/2024 in Title Suit No. 89/2023, whereby, rejected the Petition filed by the petitioner for granting leave to file Counter Claim was rejected and returned the Counter Claim to the petitioner. 3. It is submitted by Mr. Mozumder, learned counsel for the petitioner that opposite party/respondent Nos. 1, 2, and 3 instituted a title suit being T.S. No. 89/2023 for declaration of their right, title and interest over the two plots of land which has been mentioned in schedule covered by different dags and along Page No.# 4/11 with the said title suit, the respondents also filed misc application under Order 39 Rule 1 and 2 CPC praying for ad-interim/temporary and permanent injunction in respect of the suit land. 4. After receiving the notices/summons from the Court, the petitioners being the defendants entered into appearance and on 13.12.2023 they filed their written objection in Misc. Case No.162/2023 and thereafter the Trial Court had also passed an order dated 04.01.2024 in the said misc. case directing both the parties to maintain status quo in respect of the suit land, till disposal of the connected Title Suit. Thereafter, the respondents also filed a misc. application under Order 39 Rule 2(A) against the petitioner as well as other proforma respondents with false and concocted allegation of violation of temporary ad- interim injunction dated 25.08.2023, wherein, the present petitioners had filed their written objection. But, while the status quo order was operating, the respondent Nos. 1, 2 and 3 started construction of Pucca structure over the suit land on 14.01.2024 and when the proforma respondent Nos. 4 to 7 raised objection and file a complaint to the concerned Police Station, the police visited to the suit land and found that the respondent Nos. 1,2 and 3 had violated the order dated 04.01.2024. 5. The petitioners as well as the proforma respondent Nos. 4 to 7 then filed their Written Statements in T.S. No. 89/2023 denying the entire claim of the respondents with further prayer for dismissal of the suit. 6. After filing of the W.S., the respondent No. 3 also filed a Misc. application under Section 151 CPC for grant of renovation and repairing of dwelling houses without mentioning any boundary, claiming entire land under his exclusive possession, wherein by order dated 26.02.2024, the opposite party No. 3 was allowed to renovate their existing dwelling houses by the learned Trial Court. Page No.# 5/11 Taking advantage of the order dated 26.02.2024, the respondents had entered into the land of the petitioners and also started planting some trees over the said plot of land. Thus, the respondents are trying to occupy the land of which the petitioners are in possession. 7. Thereafter, on 26.07.2024, the petitioners finding no other alternative had filed a petition before the learned Trial Court, which was also registered as Misc. Case No. 168/2024 seeking leave of the Court to file their Counter-Claim after filing of the Written Statement. But the learned Trial Court vide order dated 26.07.2024 had rejected the petition filed by the petitioners seeking leave of the Court to file their Counter-Claim. 8. Being aggrieved with the said order, the present petition has been filed praying for setting aside and quashing the order passed by the learned Civil Judge (Sr. Div.), Hailakandi dated 26.07.2024 rejecting the prayer of leave of the Court to file their Counter-Claim. 9. It is submitted by Mr. Mozumder, learned counsel for the petitioner that at the time of filing the suit they have not mentioned any proper boundaries except mentioning of Dags in the suit and the 22 Bighas of land which has included the purchased land of the petitioners, which they are in possession and when they tried to dispossess by the respondents, they had to pray for filing their Counter-Claim. 10. He further submitted that the learned Trial Court had rejected the prayer for Counter-Claim only considering the fact that the Counter-Claim was filed after framing of issues. But the Counter-Claim can be filed or accepted even at the stage of evidence. In that context also, learned counsel Mr. Mozumder relied on a decision of the Hon’ble Supreme Court in the case of Vijay Prakash Page No.# 6/11 Jarath Vs. Tej Prakash Jarath reported in (2016) 11 SCC 800, wherein the Hon’ble Supreme Court had expressed the view that the Counter-Claim can be accepted in any stage of the case even if no serious injustice is or irreparable loss is caused to the other side. Para 10 of the said judgment read as under:- “9. It is quite apparent from the factual position noticed hereinabove, that after the issues were framed on 18.10.1993, the counter claim was filed by the appellants before this Court (i.e. by defendant Nos.3 and 4 before the trial court) almost two and a half years after the framing of the issues. Having given our thoughtful consideration to the provisions relating to the filing of counter claim, we are satisfied, that there was no justification whatsoever for the High Court to have declined, the appellant before this Court from filing his counter claim on 17.06.1996, specially because, it is not a matter of dispute, that the cause of action, on the basis of which the counter claim was filed by defendant Nos.3 and 4, accrued before their written statement was filed on 11.11.1992. In the present case, the respondent-plaintiff's evidence was still being recorded by the trial court, when the counter-claim was filed. It has also not been shown to us, that any prejudice would be caused to the respondent-plaintiff before the trial court, if the counter-claim was to be adjudicated upon, along with the main suit. We are of the view, that no serious injustice or irreparable loss (as expressed in paragraph 15 of Bollepanda P.Pooncha's case), would be suffered by the respondent-plaintiff in this case.” 11. Mr. Quadir, learned counsel for the respondent/plaintiff submitted in this regard that the learned Trial Court had rightly passed the order rejecting the prayer for leave of the Court to file Counter-Claim by considering all aspect of the case. It is submitted that the defendants/petitioners cannot be permitted to file Counter-Claim after the issues are being framed and the case was substantially progressed at the time of filing the prayer for Counter-Claim. 12. He further submitted that the petitioners/defendants had filed the W.S. on 25.01.2024 and the cause of action of the Counter-Claim arose only on 27.04.2024 after framing of the issues on 26.02.2024 and at the stage of filing their Counter-Claim, the PWs had closed their evidence and there is no such explanation of the delay in filing their Counter-Claim at a belated stage. Page No.# 7/11 13. He further submitted that in their petition seeking the Counter-Claim which was annexed with the petition also reveals that they have taken the plea that the cause of action of the Counter-Claim arose only on 27.04.2024 when the respondents had allegedly trespassed into their land and they claim their land over the Dag Nos. 725 and 719, but from the W.S. which has already been filed on 25.01.2024, it is seen that they have already took the plea in para-23 of their W.S. and it is categorically mentioned in para-23 that the plaintiff purchased land from different dags and patta except the Dag No. 725 and 719 which has been falsely included in their suit land. Thus, they already took the plea at the time of filing their W.S. and hence, no cause of action arose on 27.04.2024. 14. Relying on a decision of the Hon’ble Supreme Court in the case of Rajul Manoj Shah @ Rajeshwari Rasiklal Sheth Vs. Kiranbhai Shakrabhai Patel and another reported in (2025) AIR (SC) 4284 it is submitted that the Hon’ble Supreme Court had expressed the view that defendant cannot be permitted to file Counter-Claim after the issues are being framed and after the suit proceeded substantially. He basically relied on para -24 of the said judgment, which read as under:- “24. Re: Defendant no. 2 filed the counter-claim after issues were framed: It is true that issues were framed on 12.02.2019 and the application for counter claim was filed almost two years thereafter i.e., on 26.07.2021. For our purpose, it is sufficient to refer to the guiding principle for determining the time-frame for filing a counter claim, succinctly articulated in the judgment of this Court in Ashok Kumar Kalra (supra). The relevant portion of the decision is as under10; “17. The time limitation for filing of the counterclaim, is not explicitly provided by the legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the embargo provided for the accrual of the cause of action under Order 8 Rule 6-A. Having said so, this does not mean that counterclaim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under Page No.# 8/11 the Limitation Act, 1963 as the time barred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of Order 8 Rule 6-A. 18. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6-A in Order 8 CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filing of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the court has no power. The courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counterclaim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to CPC. 19. In this regard having clarified the law, we may note that Mahendra Kumar case [Mahendra Kumar v. State of M.P., (1987) 3 SCC 265] needs to be understood and restricted to the facts of that case. We may note that even if a counterclaim is filed within the limitation period, the trial court has to exercise its discretion to balance between the right to speedy trial and right to file counterclaim, so that the substantive justice is not defeated. The discretion vested with the trial court to ascertain the maintainability of the counterclaim is limited by various considerations based on facts and circumstances of each case. We may point out that there cannot be a straitjacket formula, rather there are numerous factors which needs to be taken into consideration before admitting a counterclaim. 20. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognise the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the Page No.# 9/11 parties, need to be recognised as well (refer to Salem Advocate Bar Assn. case [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344 : AIR 2005 SC 3353] ). 21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the 16 accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: (i) Period of delay. (ii)Prescribed limitation period for the cause of action pleaded. (iii) Reason for the delay. (iv) Defendant's assertion of his right. (v) Similarity of cause of action between the main suit and the counterclaim. (vi) Cost of fresh litigation. (vii) Injustice and abuse of process. (viii) Prejudice to the opposite party. (ix) And facts and circumstances of each case. (x) In any case, not after framing of the issues.” 15. Mr. Quadir, learned counsel also submitted that the learned Trial Court had rightly rejected the prayer for filing Counter-Claim by considering and discussing all the aspects of the case and hence, there is no need of any interference with the order passed by the learned Trial Court. 16. Heard the submissions made by learned counsel for both sides and I have also perused the case record and the annexures annexed along with the petition including the impugned order. 17. From the discussion made above, it is seen that the petitioners as defendants prayed for filing their Counter-Claim with the allegation that on 27.04.2024 respondents/plaintiff had criminally trespassed into their land and for which the cause of action arose on 27.04.2024 and in that view they prayed Page No.# 10/11 for filing their Counter-Claim. It is also seen that the basic contention of the petitioner/defendants is that they included the land which are in their possession and basically two dags they have mentioned i.e., Dag Nos. 725 and 719. But, admittedly, it is seen that they have already took the plea that lands from these two dags was also falsely included in their suit land by the plaintiff with a view to grab their land. It is also seen that they have filed the W.S. with those specific plea on 25.01.2024 and issues are being framed on 26.02.2024 and thereafter only, the Counter-Claim was filed on 26.07.2024 with a plea that the respondents/plaintiffs had trespassed into their land on 27.04.2024. But admittedly, there is no explanation as to why even after the cause of action arose on 27.04.2024, they had to file their Counter-Claim only on 26.07.2024. 18. It is also rightly observed by the learned Trial Court that the Counter-Claim can be accepted after filing of the W.S. and after framing of the issues and in exceptional circumstances, it can also be accepted before commencement of recording of plaintiff evidence if the cause of action accrue prior to filing of the Written Statement. 19. But here in the instant case, it is very much evident that the Written Statement was filed on 25.01.2024 and the issues are accordingly framed on 26.02.2024 and the prayer for filing the Counter-Claim was filed only on 26.07.2024 with the plea that the cause of action for the Counter-Claim arose only on 27.04.2024. Thus, it is an admitted fact that the cause of action accrue after filing of the W.S. and not prior to the filing of the W.S. 20. The Hon’ble Supreme Court in case of Rajul Manoj Shah @ Rajeshwari Rasiklal Sheth (supra) categorically held that under Order 8 Rule 6 (a) CPC does not put an embargo on filing the Counter-Claim after filing of the W.S. but the restriction is only with the respect of the accrual of the cause of action. The Page No.# 11/11 learned Trial Court also considered the judgment of the Hon’ble Supreme Court in the case of Mahesh Govindji Trivedi (supra) wherein the Apex Court considered the judgment in the case of Ashok Kumar Kalrwa Vs. Wing Cdr. Surendra Agnihotri and others reported in (2020) 2 SCC 394 wherein also it is observed that in exceptional circumstances the Counter-Claim can be accepted at the commencement of the recording of the plaintiffs evidence but for that also the cause of action for the Counter-Claim must accrue prior to filing of the Written Statement. 21. Thus, from the above discussion, it is seen that the learned Trial Court committed no error or mistake while rejecting the prayer of the petitioner/defendants for filing their Counter-Claim at the stage of closure of the plaintiffs evidence, wherein the cause of arose after filing of the Written Statement. 22. In view of the above, this petition being devoid of merit stands dismissed. JUDGE Comparing Assistant