Section 149 CPC Cannot Revive a Counterclaim Never Taken on Record; Court Fee Defect Can Be Cured Only in an Existing Pleading: Supreme Court

Case Name: IJM Corporation Berhad v. M/s Lakshmi Sai Constructions Company & Anr.

Date of Judgment: 28 July 2026

Citation: 2026 INSC 777

Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran

Held: The Supreme Court held that Section 149 CPC permits a court to allow deficient court fee to be paid at a later stage only where the plaint, counterclaim or other chargeable document is already before the Court; it cannot be invoked to resurrect a counterclaim that was never taken on record. In the present case, when the written statement was resubmitted, the defendant expressly sought only that the written statement be taken on record because it lacked funds to pay court fee, with the result that the counterclaim did not legally subsist before the Court. After the trial had virtually concluded, the defendant could not introduce that counterclaim merely by depositing court fee. Any attempt to bring it on record at that stage would also attract the proviso to Order VI Rule 17 CPC, requiring proof that despite due diligence the matter could not have been raised before commencement of trial something the defendant neither pleaded nor established.

Summary: The defendant had originally raised a counterclaim along with its written statement on 13 October 2015. The filing was returned with a direction that the counterclaim be shown separately. When it was resubmitted in March 2016, the defendant stated that it was unable to pay the requisite court fee and requested that the written statement alone be accepted. The Court accordingly took only the written statement on record. The Supreme Court therefore found that, legally, no counterclaim remained on the record.

Almost four years later, on 5 March 2020, the defendant sought permission to deposit the court fee relating to the counterclaim, and the Trial Court allowed the application on the same day. By then, however, the plaintiff’s evidence had already closed on 24 July 2019 and PW-1’s evidence had closed on 29 January 2020. Since there was no counterclaim on record during trial, the plaintiff naturally had not led evidence to meet or rebut such a claim.

The Supreme Court distinguished A. Nawab John v. V.N. Subramaniyam. That decision recognises the wide power under Section 149 CPC to permit payment of deficient court fee at any stage in relation to a document already presented before the Court. The crucial difference here was that the counterclaim itself had not been accepted on record. Consequently, there was no existing counterclaim whose court-fee deficiency could simply be cured under Section 149.

The Court further observed that introducing the counterclaim after trial would effectively require amendment of the written statement. Such an amendment would be governed by the proviso to Order VI Rule 17 CPC, which permits post-commencement amendments only where due diligence could not have enabled the party to raise the matter earlier. The defendant pleaded no such circumstance; its stated financial inability to pay court fee was itself something that would have required proper pleading and proof.

Decision: The Supreme Court allowed the appeal, set aside the High Court’s order affirming the Trial Court’s permission to pay court fee on the counterclaim, and directed that the suit be adjudicated without the counterclaim. The Court found no justification for permitting the counterclaim to effectively enter the proceedings after the trial had already concluded.