IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9966 of 2010(O)
1. M.V.KUMARAN, S/O.VELAYUDHAN, AGED 68,
... Petitioner
Vs
1. K.P.REMANAN, S/O.PAPPU, AGED 55,
... Respondent
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :24/03/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C). No. 9966 of 2010
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Dated this the 24th day of March, 2010.
JUDGMENT
In this writ petition filed under Article 227 of
the Constitution of India the following relief is sought for:
“i) issue a direction to the Munsiff Court,
Muvattupuzha not to entertain the courter
claim of the respondent in O.S. 390 of 2001 as
the court is lacking pecuniary jurisdiction.”
2. Petitioner is the plaintiff in O.S. 390 of 2001
before the Munsiff’s Court, Muvattupuzha. The suit was
one for realisation of money and prohibitory injunction.
There was a suit between the parties as O.S. 96 of 2001.
In the said suit a compromise decree was passed and as
per the compromise the plaintiff was bound to pay a sum
of Rs.16008/- to the defendant. As per the terms of the
settlement the defendant was liable to clear the whole
amount due to a Co-operative Bank. Since the
WPC.9966/2010. 2
defendant did not pay the amount the plaintiff had to pay
the amount. The plaintiff laid a suit for recovery of that
amount.
3. The defendant resisted the suit and filed a
counter claim. It is stated that the counter claim exceeded
the pecuniary jurisdiction of the Munsiff’s court and an issue
regarding the pecuniary jurisdiction to entertain the counter
claim was raised.
4. After trial, the suit was decreed. The
respondent filed A.S.35 of 2008 before the Sub Court,
Ernakulam. By judgment dated 21.2.2009 the decree and
judgment of the trial court was set aside and the matter was
remanded to the trial court for fresh disposal after accepting
the written statement with counter claim.
5. Complaint of the petitioner is that even though
the appellate court directed the Munsiff’s Court to accept the
resubmitted written statement with counter claim after
affording an opportunity to the plaintiff to file written
statement to the counter claim. It is therefore prayed that
WPC.9966/2010. 3
there may be a direction to the Munsiff’s Court not to admit
the counter claim.
6. In the light of the order, that is proposed to be
passed, it is unnecessary to issue notice to the respondent.
7. The remand order made in A.S. 35 of 2008 is
explicit and clear. It reads as follows:
“1. xxxx xxxx
2. If the cost is paid as above, the court
below is directed to accept the re-submitted
written statement with counter claim, give the
respondent/plaintiff an opportunity to file written
statement to it, give both parties an opportunity to
adduce further evidence, if any, and dispose of the
suit and counter claim on merit in accordance with
law.”
Therefore the trial court is bound by the said direction.
There is no reason to believe that the trial court while
considering the counter claim will not give due respect to
the direction issued by the appellate court. At any rate,
WPC.9966/2010. 4
there will be a direction to the trial court to consider the
counter claim strictly in accordance with the remand order
passed by the appellate court .
The writ petition is disposed of as above.
P. BHAVADASAN,
JUDGE
sb.