Page No.# 1/10 GAHC010256962025 2026:GAU-AS:8541 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/167/2025 SMTI. NEENA DAS DAUGHTER OF LATE MOHAN CHANDRA DAS, PERMANENT RESIDENT OF VIJAYA HERITAGE, WARD NO. 4, TEZPUR TOWN, POST OFFICE AND POLICE STATION- TEZPUR, MOUZA- MAHABHAIRAB, DISTRICT- SONITPUR, ASSAM- 784001. VERSUS SMTI MANJULA DAS AND 3 ORS. WIFE OF LATE SADANANDA DAS, RESIDENT OF BAROHOLIA, WARD NO. 4, TEZPUR TOWN, POST OFFICE AND POLICE STATION- TEZPUR, MOUZA- MAHABHAIRAB, DISTRICT- SONITPUR, ASSAM- 784001. 2:RANJAN DAS SON OF LATE SADANANDA DAS RESIDENT OF BAROHOLIA WARD NO. 4 TEZPUR TOWN POST OFFICE AND POLICE STATION- TEZPUR MOUZA- MAHABHAIRAB DISTRICT- SONITPUR ASSAM- 784001 4:SMTI PANCHALI HAZARIKA DAUGHTER OF LATE TRAILAKYA NATH HAZARIKA AND LATE BINA HAZARIKA RESIDENT OF VIJAYA HERITAGE WARD NO. 4 TEZPUR TOWN POST OFFICE AND POLICE STATION- TEZPUR MOUZA- MAHABHAIRAB DISTRICT- SONITPUR Page No.# 2/10 ASSAM- 78400 Advocate for the Petitioner : MR. M K CHOUDHURY, MR. R BORPATRA,MR. D. BORAH Advocate for the Respondent : MR C GOGOI (R-1,2), MS D DEVI(R-1,2),MR. S BISWAS(R-1,2) BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Advocates for the petitioner : Mr. M.K.Choudhury, Sr. Adv, assisted by Mr. D.Borah Advocate for the respondents : Mr. S.Biswas Date on which judgment is reserved : NA Date of pronouncement of judgment : 15.06.2026 Whether the pronouncement is of the operative part of the judgment : Full judgment. Whether the full judgment has been pronounced : Yes. JUDGEMENT AND ORDER (ORAL) The present Revision Petition under Article 227 of the Constitution of India has been filed by the petitioner assailing the Order dated 11.09.2025 passed by the Civil Judge Junior Division No.2, Sonitpur, Tezpur in Misc (J) Case No. 8/2025 arising out of Title Suit No. 234/2022. 2. The petitioner has invoked the supervisory power of this Court under Article 227 of the Constitution by questioning the propriety of the impugned order dated 11.09.2025 passed by the learned Civil Judge Junior Division No.2, Page No.# 3/10 Sonitpur, Tezpur in Misc (J) Case No. 8/2025 by which the learned trial court allowed the respondents to amend the written statement and to file counter claim in the Suit at a belated stage after the framing of issues. 3. I have heard learned Senior Counsel for the petitioner, Mr. M.K. Choudhury, assisted Mr. D. Borah and Mr. S. Biswas, learned Counsel for the respondents. 4. The brief facts of the case leading to the filing of this petition is that the petitioner/plaintiff had instituted the Title Suit 234/2022 on 10.11.2022 praying for a declaration that the suit property is joint property; that the plaintiff and proforma defendants being co-owners are entitled to ¾ shares from the scheduled property with consequential relief of partition and separate possession of their ¾ share therein and for putting them in their shares and for permanent injunction. 5. The respondents/defendants after receipt of summons made their appearance and filed their written statement contending that there is no question of partition of the scheduled land as the father of the petitioner/plaintiff during his life time had made sure that all his legal heirs have their own properties apart from taking care of all expenses for their weddings. According to the respondent/defendant the scheduled land was for enjoyment of Sadananda Das, late son of late Mohan Chandra Das only and during his life time Mohan Chandra Das had already transferred the same to his son late Sadananda Das and that the petitioner/plaintiff had illegally inserted her name in the Jamabandi with the help of corrupt officials in the revenue office. The Performa respondent/defendant No.1 also filed her written statement stating that she had no objection if the Court grants any kind of consequential relief of partition to the petitioner/plaintiff. Page No.# 4/10 6. After the written statement by the respondents/defendants was filed the learned Trial court framed the issues and the matter was fixed for SBPH. 7. However, on 08.01.2025, a petition No.101/2023 registered as Misc (J) Case No.08/2025 was filed by the respondent/defendant under Order 8 Rule 9 r/w Section 151 of the CPC before the learned Trial Court praying for leave of the Court to make amendment to the written statement and also to file a counter claim on the ground that the earlier engaged advocate had mistakenly not advised them to file a counter claim and only after they engaged a new counsel, they have been advised to do so. 8. 8. The petitioner/plaintiff submitted her written objections to the Misc (J) Case No.08/2025 stating that the respondents/defendants are barred from filing the counter claim at such a belated stage, after framing of the issues. It was further pointed out that the respondent/defendant had not shown any exemplary reasons beyond the control of the defendants for filing a counter claim at such a belated stage. The petitioner/plaintiff therefore prayed before the learned trial court to reject the Misc (J) Case No.08/2025 filed by the respondents/defendants. 9. After hearing the parties, the learned trial court allowed the Misc (J) Case No.08/2025 by the impugned order dated 11.09.2025. Being aggrieved, the petitioner is before this Court. 10. The learned Senior Counsel for the petitioner has drawn the attention of this Court to the impugned order dated 11.09.2025 and submits that the leaned Trial Court failed to appreciate the settled principles of law as laid down by a 3(three) Judge Bench of the Hon’ble Supreme Court in the case of Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri and Others, (2020) 2 Page No.# 5/10 SCC 394, wherein the Supreme Court had placed a strict embargo on filing of counter claim post framing of issues. 11. Learned Senior Counsel submits that by failing to appreciate the law laid down in the Case of Ashok Kumar Kalra (Supra), the learned trial court has exercise a jurisdiction not vested in it by law while passing the impugned order dated 11.09.2025. 12. Learned Sr. counsel further submits that while passing the impugned order, the learned Trial Court did not appreciate the fact that the respondents had not shown any bonafide reason for being prevented from filing the counter claim before the stage of framing of issues. The Trial Court could not have allowed the counter claim to be filed on 08.01.2025, at such a belated stage after issues had already been framed as early as on 30.05.2024. 13. Learned Sr. Counsel further submits that the respondents by filing the counter claim are adopting dilatory tactics and seeking delay of the suit proceedings and therefore, the learned Trial court ought not to have used its discretion to allow the filing of the counter claim which was prejudicial to the interest of the petitioner. 14. The Learned Sr. Counsel by referring to the judgment in Ashok Kumar Kalra (Supra) submits that the Supreme Court in the said judgment clearly held that the Court has to take into consideration the outer limit for filing the counter claim, which is pegged till the issues are framed. The Supreme Court further held that the Court in such cases had the discretion to entertain filing of the counter claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative though not exhaustive:- “i. Period of delay. Page No.# 6/10 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 counter-claim. 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. Learned Sr. Counsel submits that even though the learned Trial Court had referred to the case of Ashok Kumar Kalra (Supra), the learned Trial Court had misinterpreted the principle of law laid down in the aforementioned case and had come to the conclusion that the counter claim submitted by the respondent could be admitted in the title suit as refusal to accept the counter claim would lead to multiplicity of proceeding and no prejudice would be caused to the other side as evidence is not yet adduced. Page No.# 7/10 Learned Sr. Counsel further submits that the findings of the majority decision in the case of Ashok Kumar (Kalra) has to be followed by the trial court as well as this Court and not the dissenting judgment. 16. Learned Sr. Counsel in view of the above submissions prays that the impugned order dated 11.09.2025 passed in Misc (J) No.08/20258 may be quashed and set aside. 17. Per contra, learned counsel for the respondent submits that there is no perversity or illegality in the impugned order dated 11.09.2025 passed by the leaned Trial Court. He submits that the learned Trial Court had rightly appreciated the ratio laid down in the Ashok Kumar Kalra Case. He submits that the court has to consider that no injustice or irreparable loss is caused to the defendant due to a refusal to entertain a counter claim or to the plaintiff by allowing the same. He submits that the interest of justice must be given utmost importance and procedure should not outweigh substantive justice. Further the objective of reducing multiplicity of litigation must also be accorded due consideration. Learned counsel has further relied on the dissenting judgment in Ashok Kumar Kalra wherein the court had held that in exceptional circumstances, a counter claim may be permitted to be filed after issues have been framed, but prior to recording of plaintiff’s evidence. He further submits that even the majority view in the aforementioned case is that balanced approach of the court in exercise of discretionary power is required where a counter claim is filed after submission of written statement. Learned counsel therefore submits that there is no strict embargo on filing of counter claim after framing of issues and prays that the impugned order dated 11.09.2025 in Misc (J) No.08/2025 may be upheld. Page No.# 8/10 18. I have given due consideration to the submissions made by the learned counsel for the parties and perused the pleadings as well as the authorities relied upon. 19. In Rajendra Diwan vrs Pradeep Kumar Ranibala, (2019) 20 SCC 143, the Hon’ble Supreme Court held as follows: “85. The power of superintendence conferred by Article 227 is, however, supervisory and not appellate. It is settled law that this power of judicial superintendence must be exercised sparingly, to keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted within its jurisdiction, the High Court does not interfere in exercise of its extraordinary writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction under Article 227 cannot be exercised ‘in the cloak of an appeal in disguise’. 86. In exercise of its extraordinary power of superintendence and/or judicial review under Articles 226 and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not reassess or re-analyse the evidence and/or materials on record…...The writ jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of the law.” 20. This Court therefore has to restrict interference only to cases of patent Page No.# 9/10 error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. In Order VIII Rule 9 of the CPC a time limit for filing counter claim is not explicitly provided for. The legislative intention is to impose restriction on belated filing of written statement, set-off and counter claims in order to avoid multiplicity of proceeding. This Court is of the view that a counter claim can be filed even after issues have been framed in exceptional circumstances by the trial court. However, the filing of a counter claim after issues have been framed is not a matter of right. The defendant has to seek the leave of the Court to amend the written statement and incorporate the counter claim. The Hon’ble Supreme Court in the case of Ashok Kumar Kalra (Supra) had discussed the scope and timing of counter claims. In the opinion of this Court the Supreme Court in Ashok Kumar Kalra did not say that there is an absolute bar against filing a counter claim after the framing of issues. However, the court has to consider factors such as delay, stage of the suit, prejudice and whether the trial would be derailed by allowing the counter claim. 21. It cannot be said that the Ashok Kumar Kalra case has placed an absolute embargo on the filing of counter claim post framing of issues. In fact it is the view of this Court that the aforementioned judgment established a balanced approach between substantive justice and procedural discipline. However, an exceptional circumstance has to be shown by the defendant to allow filing of the counter claim after framing of issues. In fact the Hon’ble Supreme Court has delegated this balancing decision to the Trial Court with specific parameters to allow such belated filing. The principle laid down in the Ashok Kumar Kalra case has to be understood in the sense that the Supreme Court has pegged an outer limit for filing counter claims i.e., till the issues are framed but post framing of Page No.# 10/10 issues, the Court should exercise discretion cautiously. The judgment emphasizes court discretion to allow or reject counter claims. 22. In the instant case it is an admitted fact that even if the issues had been framed, no evidence had been adduced when the counter claim was filed. It is also settled law that procedural rules must facilitate justice rather than hinder it. 23. The exercise of discretion by the trial Court in the impugned order under Order VIII Rule 9 CPC r/w Section 151 CPC cannot be stated to be a case of patent error of law which goes to the root of the decision; perverse; arbitrary and/or unreasonable; in violation of principles of natural justice, without lack of jurisdiction or usurpation of powers so as to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. 24. In the result the instant petition is dismissed as being bereft of merit. 25. The Registry shall send back the trial court records expeditiously. 26. Interim order if any stands vacated. Petition is disposed. No orders as to costs. JUDGE Comparing Assistant