Code of Civil Procedure, 1908 | Order VIII

Order VIII Rule 6D CPC - Effect of Discontinuance of Suit

Order VIII Rule 6D of the Code of Civil Procedure, 1908 protects the defendant's counterclaim when the plaintiff's original suit is stayed, discontinued or dismissed. A properly instituted counterclaim may still be heard and decided on its own merits.

Text of Order VIII Rule 6D CPC

Effect of discontinuance of suit. - If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

This rule forms part of Order VIII, which governs written statements, set-off and counterclaims. The word may permits the counterclaim to proceed notwithstanding the fate of the original suit; it does not dispense with the requirements of maintainability, jurisdiction, limitation or proof.

Meaning and legal effect of Rule 6D

A counterclaim is a claim brought by a defendant against the plaintiff in the same proceedings. Under Order VIII Rule 6A, it generally has the effect of a cross-suit, allowing the court to determine the plaintiff's claim and the defendant's counterclaim together.

Rule 6D recognises that the counterclaim is not automatically extinguished merely because the original action comes to an end or is suspended. The court can continue dealing with the counterclaim, subject to the applicable procedural rules and any orders affecting it.

1. When the plaintiff's suit is stayed

A stay temporarily suspends proceedings in the original suit. Rule 6D allows the counterclaim to proceed notwithstanding that stay, although the terms of a particular stay order and any other applicable legal restriction must be considered.

2. When the plaintiff discontinues or withdraws the suit

If the plaintiff withdraws or discontinues the original suit, an existing counterclaim does not necessarily fall with it. The defendant may pursue the relief claimed in the counterclaim. Order XXIII Rule 1, dealing with withdrawal and abandonment of suits, must also be considered where applicable.

3. When the plaintiff's suit is dismissed

Dismissal of the plaintiff's claim does not, by itself, decide the defendant's counterclaim. The court may still examine the counterclaim and grant or refuse relief on its own legal and evidentiary merits.

Conditions for proceeding with a counterclaim

Proper pleading: The defendant must clearly state the counterclaim in accordance with Order VIII Rule 6B.
Cause of action: The counterclaim must satisfy the requirements of Order VIII Rule 6A, including the statutory timing of accrual of its cause of action.
Jurisdiction: The relief sought must be within the court's pecuniary and other applicable jurisdiction.
Limitation: The counterclaim remains subject to the applicable limitation law; Rule 6D does not revive a time-barred claim.
Opportunity to respond: Under Rule 6A(3), the plaintiff may file a written statement in answer to the counterclaim within the period fixed by the court.
Judicial determination: The defendant must establish entitlement to relief; continuation is not an automatic decree.

Practical illustration

Suppose A sues B for recovery of Rs. 5 lakh. B files a valid counterclaim seeking Rs. 2 lakh from A for a separate legally enforceable demand. If A subsequently withdraws the original suit, B's counterclaim may still proceed under Rule 6D. The court will decide whether B has proved the counterclaim and whether the claimed relief can lawfully be granted.

Order VIII Rule 6 - Particulars of set-off to be given in the written statement.
Order VIII Rule 6A - Counterclaim by defendant; effect as a cross-suit.
Order VIII Rule 6B - Counterclaim to be stated specifically.
Order VIII Rule 6C - Exclusion of counterclaim on the plaintiff's application.
Order VIII Rule 6E - Default by plaintiff in replying to counterclaim.
Order VIII Rule 6F - Relief to defendant where counterclaim succeeds.
Order VIII Rule 6G - Written-statement rules applicable to a reply to counterclaim.

Frequently asked questions

Does a counterclaim survive withdrawal of the original suit?

Yes. Order VIII Rule 6D permits an existing counterclaim to proceed even if the plaintiff's suit is discontinued, provided the counterclaim is otherwise maintainable.

Does dismissal of the plaintiff's suit automatically allow the counterclaim?

No. The counterclaim may continue, but the defendant must still establish the facts and legal grounds supporting the relief sought.

Can the plaintiff request separate proceedings?

Under Order VIII Rule 6C, the plaintiff may apply before issues are settled in relation to the counterclaim for its exclusion, leaving the court to decide the application.

Official statutory reference

Consult the Code of Civil Procedure, 1908 on India Code for the central legislation and relevant amendments. State amendments, High Court rules and special procedural regimes may affect particular proceedings.

Important: This article explains the general operation of Order VIII Rule 6D. Whether a particular counterclaim can proceed depends on its pleadings, jurisdiction, limitation and the court's orders.

Updated: 12 October 2026