As per case facts... the plaintiff filed a suit for specific performance against the first defendant for a parcel of land. Subsequent defendants (Nos. 2 and 3) were impleaded and ...
No Acts & Articles mentioned in this case
2025 INSC 1310 Page 1 of 10
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 .
1. Leave granted.
2. The appellant who is the plaintiff in a suit, is aggrieved
with the order of the High Court, which affirmed the order of
the Trial Court admitting a counter claim by the defendant
Nos.2 and 3, who were subsequently impleaded, on their
application. The counter claim was against the first
defendant; against whom the plaintiff had sought a specific
performance of the very same land; subject matter of the
suit.
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C.A. @ SLP(C) No.11050 of 2025
3. The High Court dismissed the application filed under
Article 227 on the ground of avoiding multiplicity of
litigation, reasoning that the entire issue can be decided in
the suit as to whether the counter claim is maintainable or
not.
4. Heard the learned counsel for the appellant and the
respondents herein. While learned counsel for the appellant
contends that there can be no counter claim against the co-
defendant in a suit filed by him, the defendants who raised
the counter claim pleaded that they may be left liberty to
agitate their cause in appropriate proceedings. Learned
counsel for the appellant specifically relied on the decisions
in Rohit Singh & Ors. v. State of Bihar
1 and Rajul Mano
Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai
Shakrabhai Patel & Anr.
2.
5. On the brief facts, it is to be noticed that the plaintiff
filed a suit for specific performance on the contention that
defendant No.1, who was the sole defendant had entered
1
(2006) 12 SCC 734
2
(2025) 10 SCR 152
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C.A. @ SLP(C) No.11050 of 2025
into an oral agreement on 02.12.2002 to sell 0.93 acres of
land, more fully described in the plaint. The first defendant,
was the sole defendant impleaded in the plaint filed. The
entire consideration agreed upon was paid on 03.12.2002 by
way of three demand drafts, upon which a receipt was
issued in favour of the plaintiff, promising transfer of the said
land in favour of the plaintiff, which was witnessed by three
defendants, claimed the plaintiff. The plaintiff also asserted
that he was put in possession of the property on which he
had built a boundary wall.
6. The original sole defendant filed a written statement
contending that two others (defendant Nos.2 and 3,
subsequently impleaded) were the persons in possession of
part of the suit property and hence the suit is bad for non-
joinder of the necessary parties. It was claimed that on
01.12.2002, a portion of the very same land, 50 decimals,
was agreed to be transferred to the 2
nd
and 3
rd
defendants,
the consideration of which, Rs.2,95,000/- was required to be
paid on 03.12.2002. However, it is also admitted that in the
meanwhile, the 1
st
defendant due to his financial need sold
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C.A. @ SLP(C) No.11050 of 2025
43 decimals of land to the father of the plaintiff for an amount
of Rs.2,55,000/-. There is also an averment that the plaintiff
made payment of Rs.2,55,000/- by demand drafts and 2
nd
and 3
rd
defendants made payment of Rs.2,95,000/- by
deposit in a bank account.
7. As of now, the question of non-joinder of necessary
parties does not arise since the 2
nd
and 3
rd
defendants
themselves filed an application for impleadment, which was
allowed, upon which the plaintiff had taken up a challenge
before the High Court, rejected as per Annexure P11.
However, the written statement filed by 2
nd
and 3
rd
defendants assert that their agreement was to purchase the
entire land for Rs.5,50,000/- out of which they have paid
Rs.2,95,000/-. They also raised a counter claim against 1
st
defendant that they are entitled to be transferred the entire
land which was allowed to be taken up by the Trial Court
and challenged unsuccessfully before the High Court;
impugned herein.
8. Admittedly, even if the allegation of an agreement of
sale with 2
nd
and 3
rd
defendants is accepted, there is no
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C.A. @ SLP(C) No.11050 of 2025
contention that the amount agreed upon was paid to the 1
st
defendant or that they were always ready and willing to pay
the balance sale consideration. It is also pertinent that in the
written statement filed, the 2
nd
and 3
rd
defendants concede
that 43 decimals of land was purchased by plaintiff’s father
and their agreement was confined to purchase of 50
decimals of land. It is the specific case put forth that the area
shown in the receipt was fraudulently changed from 43 to 93
decimals.
9. Rohit Singh (supra) was a case in which the plaintiff
filed a suit for specific performance and possession, against
two defendants. The suit went to trial, the evidence was
closed, arguments concluded and reserved for judgment.
Then the third parties filed an impleading application
claiming right over the suit property by way of a counter
claim, which was allowed by the Trial Court. Though the
plaintiff’s claim was rejected, that of the impleaded
respondents stood allowed against which the defendant
Nos.1 and 2, the Divisional Forest Officer and the State of
Bihar filed an appeal unsuccessfully, which was challenged
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C.A. @ SLP(C) No.11050 of 2025
in a second appeal, successfully. The appellants before this
Court contended that the counter claim was maintainable
even if the cause of action put forth by the defendants in the
suit did not arise out of the cause of action based on which
the suit was filed by the plaintiff.
10. The counter claim was rejected by this Court for
multiple reasons, one of which, that it could not have been
raised after the issues are framed and the evidence was
closed. Then, that though a contention was raised regarding
the counter claim, there was not even a prayer seeking a
declaration of title, in which event, there was no counter
claim in terms of Order 8, Rule 6A of the Code of Civil
Procedure, 1908. It was also found that the Trial Court only
treated the written statement as a counter claim and
afforded no opportunity for the defendant Nos.1 and 2 to
effectively contest the same by way of pleadings. Finally, it
was held that a counter claim though can be based on
different cause of action than that are put forth in the suit, it
should be one incidental or connected with that cause of
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action and it has necessarily to be directed against the
plaintiff and cannot be directed against the co-defendant.
11. Rajul Mano Shah (supra) was a case in which the
plaintiff filed a suit against her sister-in-law from alienating
the latter’s portion of the undivided share of a joint family
property in favour of a third party; the second defendant.
The sister-in-law died while the suit was pending, and the
second defendant sought substitution of the original
defendant No.1 with a Court appointed officer which came
to be allowed. The counter claim raised was for specific
performance of the agreement, allegedly executed by the
first defendant and for partition, which prayer of partition
was claimed to be an incidental prayer against the plaintiff
in the suit. This Court found that the claim of specific
performance is independent of the claim of partition, since
the second defendant should first establish a right of claim
over the property, which is absent till he succeeds against
the estate of the first defendant; in which event only the
question of setting up of a counter claim against the plaintiff
by way of a prayer for partition would arise.
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C.A. @ SLP(C) No.11050 of 2025
12. The said declaration squarely applies in the present
case also. True, if the 2
nd
and 3
rd
defendants are in
possession of any part of the property, their impleadment in
the suit is necessary since the plaintiff would also have to
claim recovery of possession in the event of a decree of
specific performance. Now, the 2
nd
and 3
rd
defendants
having already been impleaded, the suit does not suffer
from the defect of non-joinder of necessary parties.
13. It also has to be noticed that despite raising a claim for
conveyance of the entire property, the 2
nd
and 3
rd
defendants do not have a concrete case, even for a counter
claim. Their first assertion in the written statement is that
they had agreed to purchase the entire land for
Rs.5,55,000/- against which Rs.2,95,000/- was already paid.
However, they conceded that 43 decimals from the very
same property was agreed to be conveyed by the first
defendant to the plaintiff for consideration of Rs.2,55,000/-.
Their contention is also that the plaintiff had fraudulently
changed the area from 43 decimals to 93 decimals. Their
claim towards the end of the written statement is that, in any
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C.A. @ SLP(C) No.11050 of 2025
event 50 decimals of the suit property has to be conveyed to
them based on the part payment made by them for which
there is no agreement. The 2
nd
and 3
rd
defendants, hence,
are found to have no concrete claim against the property
and in any event, the impleading application in the suit was
also filed only in the year 2006 after the period of limitation
seeking the claim of specific performance, the cause of
action for which, even according to the defendants, arose on
02.12.2002.
14. As has been held in the decisions cited, the counter
claim against the co-defendant cannot survive and the same
has to be rejected. Impleadment of the 2
nd
and 3
rd
defendants though voluntarily made by themselves, saves
the suit from the defect of non-joinder of necessary parties,
on the ground of possession, even if it is so found. We make
it clear that we have not held on merits regarding the
possession as such and it would be for the Trial Court to
determine the same and if necessary, grant recovery of
possession, if that is sought for by the plaintiff appropriately
in the suit.
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15. We find no reason to leave liberty to the defendants 2
& 3 to file a separate suit at this stage, when the claim would
be grossly delayed, which was hit by limitation even at the
time of filing of the counter claim; which in any event cannot
survive against the plaintiff.
16. The Civil Appeal is hence allowed, and the parties are
left to agitate their cause before the Trial Court, leaving
open all contentions except – that of the counter claim of the
defendants 2 & 3, which stands set aside.
17. Pending application(s), if any, shall stand disposed of.
……..…..……………………. J.
(K. Vinod Chandran)
………….……………………. J.
(N. V. Anjaria)
New Delhi;
November 12, 2025.
In a significant ruling, the Supreme Court of India, in the case of Sanjay Tiwari v. Yugal Kishore Prasad Sao & Ors. (2025 INSC 1310), has clarified the permissible scope of counter-claims in civil suits, particularly emphasizing that a counter-claim cannot be directed against a co-defendant. This Non-Reportable judgment, now accessible on CaseOn.in, delves into the nuances of procedural law, reinforcing the principle that a counter-claim must primarily target the plaintiff. The case originated from a Specific Performance Suit, where the central issue revolved around the maintainability of a Counter-claim Against Co-Defendant, a crucial point for legal practitioners and students alike.
Sanjay Tiwari v. Yugal Kishore Prasad Sao & Ors.
Civil Appeal No.…………..of 2025
[@ Special Leave Petition (C) No.11050 of 2025]
2025 INSC 1310 (Non-Reportable)
The appellant, Sanjay Tiwari (plaintiff), filed a suit seeking specific performance of an oral agreement to sell 0.93 acres of land against the first defendant. Subsequently, defendant Nos. 2 and 3 were impleaded, and they filed a counter-claim against the first defendant, seeking the transfer of the entire land to themselves. Both the Trial Court and the High Court allowed the admission of this counter-claim. The plaintiff challenged this decision before the Supreme Court, arguing that a counter-claim could not be filed against a co-defendant.
The core legal question before the Supreme Court was whether a counter-claim filed by subsequently impleaded defendants (co-defendants) against another defendant (the original sole defendant), rather than against the plaintiff, is legally maintainable under the provisions of the Code of Civil Procedure, 1908 (CPC), especially in a specific performance suit.
The Supreme Court relied on established legal principles governing counter-claims, primarily derived from Order 8 Rule 6A of the CPC and previous judgments. The key rules are:
The Court specifically referenced two precedents:
The plaintiff, Sanjay Tiwari, had filed a specific performance suit against the first defendant for 0.93 acres of land. The first defendant, in his written statement, contended that defendant Nos. 2 and 3 were in possession of part of the property and were necessary parties. Consequently, defendant Nos. 2 and 3 were impleaded on their own application.
Upon impleadment, defendant Nos. 2 and 3 filed a written statement, asserting their own agreement to purchase 50 decimals of the same land from the first defendant and claiming to have made a part payment. Critically, they then raised a counter-claim *against the first defendant* seeking the transfer of the *entire* land to them. This counter-claim was allowed by the Trial Court and affirmed by the High Court.
The Supreme Court, applying the rules from *Rohit Singh* and *Rajul Mano Shah*, found that the High Court and Trial Court had erred. The Court reiterated that a counter-claim, by its very nature, must be directed against the plaintiff. In this instance, defendant Nos. 2 and 3's counter-claim was solely against the first defendant, making it impermissible under Order 8 Rule 6A CPC.
Furthermore, the Court observed that defendant Nos. 2 and 3 lacked a concrete case even for a counter-claim, acknowledging that part of the property was purportedly sold to the plaintiff's father. Their claim to the *entire* land despite paying for only a portion, and the allegation of fraudulent change in land area, further complicated their position. The Court also noted that their impleading application was filed in 2006, while their alleged cause of action arose in 2002, raising serious questions of limitation for any specific performance claim.
While acknowledging that the impleadment of defendant Nos. 2 and 3 cured the defect of non-joinder of necessary parties (especially if they were in possession, requiring the plaintiff to claim recovery of possession), this did not validate their counter-claim against a co-defendant. Understanding such intricate procedural nuances is vital, and CaseOn.in 2-minute audio briefs assist legal professionals in analyzing these specific rulings by providing concise and clear summaries of complex judgments, making them easily digestible and actionable.
The Supreme Court held that the counter-claim filed by defendant Nos. 2 and 3 against the first defendant could not survive. The Court, therefore, allowed the Civil Appeal, setting aside the counter-claim. The judgment explicitly stated that no liberty would be granted to defendant Nos. 2 and 3 to file a separate suit at this stage, primarily due to the significant delay and the claim being time-barred even at the time of filing the counter-claim. All other contentions between the parties, except for the dismissed counter-claim, were left open for adjudication by the Trial Court.
This judgment serves as a crucial reminder for lawyers, litigants, and law students regarding the strict procedural requirements for filing counter-claims. It unequivocally establishes that a counter-claim must be directed against the plaintiff, not against a co-defendant. This clarity helps prevent the unwarranted expansion of litigation by ensuring that claims between co-defendants are pursued through appropriate separate proceedings, maintaining the focus of the original suit. It also highlights the importance of timely action and adherence to limitation periods when asserting rights over property.
All information provided in this article is for informational purposes only and does not constitute legal advice. While efforts have been made to ensure accuracy, readers are advised to consult with a qualified legal professional for advice pertaining to their specific circumstances. CaseOn.in and its content creators are not liable for any actions taken or not taken based on the information provided herein.
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