A counterclaim may be allowed late when changed circumstances make affirmative relief necessary.

Respondent No. 1 filed O.S. No. 191/2022 seeking partition and separate possession.

The petitioner, Defendant No. 1, relied on a registered Will in her favour and had obtained probate and a succession certificate.

On Respondent No. 1’s appeal, the High Court set those grants aside, observing that the validity of the Will and the adoption claim were matters to be decided in the pending suit.

The petitioner then applied under Order VIII Rule 9 read with Section 151 CPC for permission to file a counterclaim.

The trial court rejected the application because issues had been framed and the case was at the arguments stage.

The petitioner challenged that rejection by writ petition.

Whether the trial court was justified in rejecting the petitioner’s application to file a counterclaim solely because it was made at a late stage of the suit.

Whether the changed circumstances following the setting aside of the probate and succession certificate warranted permitting the counterclaim so the petitioner could seek affirmative relief based on the Will.

The Court considered Order VIII Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, under which the petitioner sought permission to file a counterclaim.

It held that a defence in a written statement may defeat the plaintiff’s claim but, by itself, cannot secure an affirmative decree declaring the defendant’s title under a Will; a counterclaim was therefore necessary for that relief.

The probate and succession certificate had been set aside, leaving the petitioner to establish the Will in the pending suit.

The Court treated that appellate decision as a changed circumstance relevant to the need for a counterclaim.

Because the petitioner’s existing defence could not obtain a decree in her favour based on the Will, the counterclaim served a distinct purpose.

The trial court had rejected the application solely on grounds of delay and the stage of proceedings, without properly appreciating these circumstances; the High Court held that this was an error.

It allowed I.A. No. 27 and permitted Defendant No. 1 to file her counterclaim with the requisite court fee.

The plaintiff was permitted to file a written statement in reply, and both parties were directed to cooperate in the early disposal of the suit.