CIVIL PROCEDURE CODE, 1908 — Order VIII Rule 6A — Counter-claim — Maintainability — Against Co-defendant — Not permissible — Counter-claim must be directed only against the plaintiff and not against co-defendants. Applied principles of Rohit Singh v. State of Bihar, (2006) 12 SCC 734 and Rajul Mano Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel, (2025) 10 SCR 152. Counter-claim by defendants 2 & 3 against defendant No.1 in a suit for specific performance held not maintainable.

2025 INSC 1310
C.A. @ SLP(C) No.11050 of 2025
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No…………..of 2025
[@ Special Leave Petition (C) No.11050 of 2025]
Sanjay Tiwari …Appellant
Versus
Yugal Kishore Prasad Sao & Ors. …Respondents

J U D G E M E N T
K. VINOD CHANDRAN, J.”

II. HEADNOTES 

CIVIL PROCEDURE CODE, 1908 — Order VIII Rule 6A — Counter-claim — Maintainability — Against Co-defendant — Not permissible —
Counter-claim must be directed only against the plaintiff and not against co-defendants. Applied principles of Rohit Singh v. State of Bihar, (2006) 12 SCC 734 and Rajul Mano Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel, (2025) 10 SCR 152. Counter-claim by defendants 2 & 3 against defendant No.1 in a suit for specific performance held not maintainable.

Specific Relief — Specific Performance — Limitation — Claim by subsequent impleaded parties —
Defendants 2 & 3 claimed specific performance on an alleged 2002 agreement; impleadment application filed only in 2006. Court held the claim grossly delayed and barred by limitation, and therefore could not be preserved under liberty for a fresh suit.

Pleadings — Counter-claim — When not maintainable — Lack of concrete claim — Inconsistent pleadings —
Defendants 2 & 3 asserted inconsistent versions: payment for entire land (Rs.5,55,000/-), admission that 43 decimals already transferred to plaintiff’s father, later restricting claim to 50 decimals without an agreement. Court held they had no concrete enforceable claim, rendering counter-claim unsustainable.

Necessary Parties — Impleadment — Persons in possession —
Though counter-claim failed, impleadment of defendants 2 & 3 proper to avoid defect of non-joinder concerning possession. Trial Court to adjudicate possession independently.

Held —
Counter-claim of defendants 2 & 3 set aside; Civil Appeal allowed; parties relegated to trial on all issues except counter-claim.

III. CASE FACTS 

1. Plaintiff (appellant) filed a suit for specific performance regarding 0.93 acres based on an alleged oral agreement dated 02.12.2002 with defendant No.1 and full payment made on 03.12.2002 through demand drafts. Plaintiff claims to have been put in possession and constructed a boundary wall.

2. Defendant No.1, in written statement, contended that defendants 2 & 3 were in possession of a part of the land. He asserted a separate agreement dated 01.12.2002 to transfer 50 decimals to defendants 2 & 3 for Rs.2,95,000/-, to be paid on 03.12.2002.

3. Defendant No.1 also admitted that 43 decimals was sold to plaintiff’s father for Rs.2,55,000/-, amount paid by demand drafts.

4. Defendants 2 & 3 were impleaded on their own application (filed in 2006). In their written statement, they asserted an agreement to purchase entire land for Rs.5,50,000/-, having paid Rs.2,95,000/-. They alleged fraud in altering area from 43 decimals to 93 decimals.

5. Defendants 2 & 3 filed a counter-claim against defendant No.1 for specific performance of entire land.

6. Trial Court admitted the counter-claim; High Court affirmed under Article 227, holding that it avoided multiplicity of litigation.

7. Plaintiff appealed.

IV. HELD 

1. Counter-claim cannot lie against a co-defendant.
   Court applied Rohit Singh and Rajul Mano Shah, holding that a counter-claim “has necessarily to be directed against the plaintiff and cannot be directed against the co-defendant.”

2. Defendants 2 & 3 had no concrete claim even to sustain a counter-claim.
   Their pleadings were inconsistent: claiming the whole land, then admitting 43 decimals already conveyed to plaintiff’s father, then restricting claim to 50 decimals “for which there is no agreement”.

3. Counter-claim was barred by limitation.
   Even on their case, cause of action arose on 02.12.2002; impleadment and counter-claim filed only in 2006 — time-barred.

4. Impleadment stands, but counter-claim is rejected.
   Impleadment avoids defect of non-joinder concerning possession, but counter-claim has to be set aside.

5. No liberty to file fresh suit by defendants 2 & 3.
   Court refused liberty since the claim was already time-barred even at the time of counter-claim.

6. Civil Appeal allowed.
   All issues left open before the Trial Court except the counter-claim, which is finally set aside.