Allowed¶11

Ratan Lal Bothra and 6 Ors. v. Kamal Kumar Bothra (Kamal Kumar Kishorilal Bothra) and 5 Ors.

Gauhati HC10 Mar 2026CRP(IO)/67/2026

Case brief

AI extract

What is this about?

Gauhati High Court, CRP(IO)/67/2026, 2026:GAU-AS:3574, 11.03.2026, Robin Phukan J.; counter claim rejection under Order VIII Rule 6A(1) CPC set aside; counter-claim permissible till framing of issues per Ashok Kumar Kalra (2020) 2 SCC 394; Article 227 / Section 151 CPC revision; Title Suit No. 48/2023, Hojai; counter claim with amended written statement under Order VI Rule 17 CPC.

What did the court decide?

Impugned order dated 28.11.2025 set aside and quashed; learned trial court directed to accept the petitioners' counter claim and proceed with Title Suit No. 48/2023 in accordance with law; civil revision petition disposed of at the motion stage itself. ¶11

Ratan Lal Bothra and 6 Ors. Vs Kamal Kumar Bothra… — Writ and Judicial Review | Gauhati HC (2026)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the trial court rightly dismissed the defendants' counter claim, filed along with the amended written statement after delivery of the written statement but before framing of issues, as barred under Order VIII Rule 6A(1) CPC.

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Ratio / Principle

The outer limit for filing a counter-claim is pegged till the framing of issues; in the present suit the issues were yet to be settled, hence the counter-claim filed with the amended written statement was not barred.

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Key takeaways

As settled in Ashok Kumar Kalra (2020) 2 SCC 394, Order 8 Rule 6-A CPC does not put an embargo on filing the counter-claim after filing the written statement; the restriction is only with respect to the accrual of the cause of action.ratio¶10
The power to entertain a counter-claim filed after the written statement is discretionary, and this court was unable to derive satisfaction from the impugned order that the trial court had applied that discretion judiciously.ratio¶10
Accepting the amended written statement while rejecting the counter claim, the impugned order dated 28.11.2025 fails to withstand legal scrutiny and stands set aside and quashed.

Detailed headnote1 paragraphs

Gauhati High Court (Robin Phukan, J.), 11.03.2026, CRP(IO)/67/2026 — Petition under Article 227 of the Constitution read with Section 151 CPC against order dated 28.11.2025 of the Civil Judge (Senior Division), Hojai in Title Suit No. 48/2023, whereby the written statement was accepted but the defendants' counter claim, filed along with the amended written statement (amendment allowed under Order VI Rule 17 CPC) with Petition No. 747/2025, was dismissed as barred under Order VIII Rule 6A(1) CPC, the defence having been filed on 31.10.2023. Relying on Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri, (2020) 2 SCC 394, the Court held that the outer limit for filing a counter-claim is pegged till the framing of issues; issues in the suit being yet unsettled, and Order 8 Rule 6-A CPC placing no embargo on filing a counter-claim after the written statement, the trial court's discretion had not been applied judiciously. Impugned order set aside and quashed; trial court directed to accept the counter claim and proceed in accordance with law; revision petition disposed of at the motion stage itself.

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GAHC010042082026

2026:GAU-AS:3574

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(IO)/67/2026

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RATAN LAL BOTHRA AND 6 ORS.

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S/O LATE GITA DEVI AND LATE MATILAL BOTHRA, R/O BHADRA BAZAR GALLI, JAIN SCHOOL, WALI, SIRSA, HARYANA- 125055

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2: LAKHPAT BOTHRA S/O LATE GITA DEVI AND LATE MATILAL BOTHRA R/O HOUSE NO. 52 NRIPEN BORA PATH FATASHIL AMBARI TINIALI GUWAHATI ASSAM- 781205

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3: PARDEEP KUMAR BOTHRA S/O LATE GITA DEVI AND LATE MATILAL BOTHRA R/O BLUEBIRD APARTMENT (ARIHANT COLONY) NEAR BINAPANI MANDIR HAIBORGAON NAGAON- 782002

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4: ASHOK KUMAR BOTHRA S/O LATE GITA DEVI AND LATE MATILAL BOTHRA R/O BHADRA BAZAR GALLI JAIN SCHOOL WALI SIRSA HARYANA- 125055 5: SUBHASH BOTHRA S/O LATE GITA DEVI AND LATE MATILAL BOTHRA FLAT NO. 602 BL- 23 DARSAN PH-2 CORPL. HOUSING SOCIETY BAGBIL NAKA

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GHORBANDHAR RD THANE WEST- 400607

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6: SMT. SHASHI JAIN D/O LATE GITA DEVI AND LATE MATILAL BOTHRA R/O BHADRA BAZAR GALLI JAIN SCHOOL WALI SIRSA HARYANA- 125055 7: RISHAB JAIN S/O PRADIP KUMAR BOTHRA R/O G.M. INFRASTRUCTURE A.T. ROAD HAIBARGAON DIST.- NAGAON ASSAM- 782002 (HE IS THE POWER OF ATTORNEY OF ALL PETITIONERS

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VERSUS

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KAMAL KUMAR BOTHRA (KAMAL KUMAR KISHORILAL BOTHRA) AND 5 ORS. SON OF LATE PORESWARI DEVI AND LATE KISHORILAL BOTHRA, R/O LANKA TOWN, WARD NO.1, P.O. AND P.S.- LANKA, DIST.- HOJAI, ASSAM, PRESENTLY RESIDING IN THE DISTRICT OF VALSAD, GUJARAT. 2:RAMESH BOTHRA (RAMESH KISHORILAL BOTHRA) SON OF LATE PORESWARI DEVI AND LATE KISHORILAL BOTHRA R/O LANKA TOWN WARD NO.1 P.O. AND P.S.- LANKA DIST.- HOJAI ASSAM PRESENTLY RESIDING IN THE DISTRICT OF VALSAD GUJARAT. 3:RAKESH KUMAR BOTHRA (RAKESH KUMAR KISHORILAL BOTHRA) SON OF LATE PORESWARI DEVI AND LATE KISHORILAL BOTHRA R/O LANKA TOWN WARD NO.1 P.O. AND P.S.- LANKA DIST.- HOJAI ASSAM PRESENTLY RESIDING IN THE DISTRICT OF VALSAD GUJARAT. 4:JAYSINGH BOTHRA (JAYSINGH KISHORILAL JAIN)

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SON OF LATE PORESWARI DEVI AND LATE KISHORILAL BOTHRA R/O LANKA TOWN WARD NO.1 P.O. AND P.S.- LANKA DIST.- HOJAI ASSAM PRESENTLY RESIDING IN THE DISTRICT OF KACHCHH GUJARAT. 5:OM PRAKASH BOTHRA (OM PRAKASH KISHORILAL BOTHRA) SON OF LATE PORESWARI DEVI AND LATE KISHORILAL BOTHRA R/O LANKA TOWN WARD NO.1 P.O. AND P.S.- LANKA DIST.- HOJAI ASSAM PRESENTLY RESIDING AT FLAT NO. 903 PRAMUKCH S-3 MUKTANAND MARG CHALA TAL VAPI DIST- VALSAD GUJARAT 6:MANOJ KUMAR BOTHRA (MANOJ KUMAR KISHORILAL BOTHRA) SON OF LATE PORESWARI DEVI AND LATE KISHORILAL BOTHRA R/O LANKA TOWN WARD NO.1 P.O. AND P.S.- LANKA DIST.- HOJAI ASSAM PRESENTLY RESIDING IN THE DISTRICT OF VALSAD GUJARAT

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Advocate for the Petitioner : MR. A KABRA, M KABRA

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Advocate for the Respondent : ,

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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11.03.2026

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Heard Mr. A. Kabra, learned counsel for the petitioners.

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2. In this petition, under Article 227 of the Constitution of India read with Section 151 of the CPC, the petitioners have challenged the order dated 28.11.2025, passed by the learned Civil Judge (Senior Division), Hojai, Sankardev Nagar (trial court hereinafter), in Title Suit No. 48/2023.

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3. It is to be noted here that vide impugned order dated 28.11.2025, the learned trial court had accepted the written statement, but dismissed the counter claim filed by the petitioner as defendant for being barred under Order VIII Rule 6A(1) of the CPC as the same has been filed after a long period of filing the defence by the defendant on 31.10.2023.

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4. Mr. Kabra, learned counsel for the petitioners submits that the respondents herein have filed one title suit, being Title Suit No. 48/2023, wherein the petitioners, as defendants, has filed their written statement. Thereafter, before framing of issues in the suit, the petitioners herein had filed an application, under Order VI Rule 17 of the CPC, for amendment of their written statement and in the said application, the respondents herein had filed their written objection and thereafter, hearing both the parties, the learned trial court had allowed the petition, vide impugned order dated 28.11.2025, to file their

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amended written statement.

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4.1. Mr. Kabra further submits that along with the amended written statement, the petitioners have also filed one counter claim along with one petition, being Petition No. 747/2025, for accepting their counter claim. But, the learned trial court had dismissed the same on the ground that the same being filed after filing of the defence and without leave of the court.

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4.2. Mr. Kabra also submits that in the suit, trial has not yet been commenced and the petitioners, along with the amended written statement have filed their counter claim also with another petition to accept the same and by not accepting the said counter claim, serious prejudice is caused to the petitioners herein and therefore, the impugned order is illegal and arbitrary and on such count, it may be set aside and quashed.

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5. Having heard the submission of Mr. Kabra, learned counsel for the petitioners, this court has carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 28.11.2025.

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6. It appears that the learned trial court had dismissed the petition on the ground that it is barred under Order VIII Rule 6A(1) of the CPC as the same has been filed after a long period of filing the defence by the defendant on 31.10.2023.

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7. A perusal of the Order VIII Rule 6A(1) of the CPC reveals that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause 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

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defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not.

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8. An three Judges Bench of Hon’ble Supreme Court, while dealing with the issue, in the case of Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri And Others , reported in (2020) 2 SCC 394 , held as under:-

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“ 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 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:-

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( i ) Period of delay.

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( ii ) Prescribed limitation period for the cause of action pleaded.

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( iii ) Reason for the delay.

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( iv ) Defendant's assertion of his right.

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( v ) Similarity of cause of action between the main suit and the counterclaim.

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( vi ) Cost of fresh litigation.

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( vii ) Injustice and abuse of process.

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( viii ) Prejudice to the opposite party.

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( ix ) And facts and circumstances of each case.

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( x ) In any case, not after framing of the

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issues.”

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9. In the instant case, perusal of the impugned order indicates that issues are yet to be settled. While the suit was posted for issue and documents the petitioner has filed the application and amendment of the written statement under Order VI Rule 17. The learned trial court has allowed filing of the amended written statement and the petitioners herein along with the said written statement filed the counter claim with the Petition No. 747/2025 for accepting the same.

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10. It is well settled in the case of Ashok Kumar Kalra (supra) that the outer limit for filing the counterclaim, which is pegged till the issues are framed. In the case in hand issues are yet to be settled. It is also well settled that the said case 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 accrual of the cause of action. The power is undoubtedly discretionary and this court is unable deriver satisfaction from a perusal of the impugned order that the discretion has been applied judiciously.

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11. In that view of the matter, accepting the amended written statement and rejecting the counter claim, vide impugned order dated 28.11.2025, to the considered opinion of this Court fails to withstand the legal scrutiny. And accordingly, the impugned order, dated 28.11.2025, stands set aside and quashed.

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12. Consequent upon setting aside of the impugned order, the learned trial court, shall, now accept the counter claim filed by the petitioners herein and thereafter, shall proceed with the suit in accordance with law.

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13. In terms of above this civil revision petition stands disposed of at the

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motion stage itself.

JUDGE

Comparing Assistant

Ratan Lal Bothra and 6 Ors. v. Kamal Kumar Bothra (Kamal Kumar Kishorilal Bothra) and 5 Ors.

Case brief

What is this about?

What did the court decide?

Ratan Lal Bothra and 6 Ors. v. Kamal Kumar Bothra (Kamal Kumar Kishorilal Bothra) and 5 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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