High Court Kerala High Court

N.Sivaraman Nair vs S.Sreedevi on 16 December, 2009

Kerala High Court
N.Sivaraman Nair vs S.Sreedevi on 16 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 37071 of 2008(L)


1. N.SIVARAMAN NAIR, S/O.NARAYANA PILLAI,
                      ...  Petitioner
2. RAJALEKSHMI, DAUGHTER OF NARAYANA PILLAI

                        Vs



1. S.SREEDEVI, GFOPALAKRISHNA VILASOM,
                       ...       Respondent

2. S.UMA, DO.DO.

3. S.REMA, PERUMPADA VEEDU, KAZHAKKUTTAM PO

4. S.PADMA, GOPALAKRISHNA VILASOM,KULATHOOR

                For Petitioner  :SRI.V.SURESH

                For Respondent  :SRI.G.S.REGHUNATH

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :16/12/2009

 O R D E R
                  S.S.SATHEESACHANDRAN, J.
                 ----------------------------------------
                   W.P.(C).No.37071 OF 2008
                     --------------------------------
        Dated this the 16th day of December 2009
         ----------------------------------------------------------
                              JUDGMENT

The writ petition is filed seeking the following reliefs.

i) Granting a writ of certiorari or such other writ,
order or direction as the court may consider
appropriate calling for the records relating to Ext.P9
order and quashing Ext.P9.

ii) Allowing such other relief as the court may
consider appropriate in the circumstances of the case
and in the interests of justice.

2. Petitioners are the defendants in O.S No.1365

of 2005 on the file of the Principal Munsiff Court,

Thiruvananthapuram. Suit is one for fixation of boundary

and injunction, both prohibitory and mandatory, and the

respondents are the plaintiffs. These petitioners/defendants

have filed a written statement resisting the suit claim. After

an advocate commissioner deputed by the court conducted

a local inspection and measured out the property with the

assistance of a surveyor and filed a report and plan, the

defendants moved an application for amending their written

statement to carry out some corrections and also to raise a

counter claim for recovery of the property which is alleged

W.P.(C).No.37071 OF 2008 Page numbers

to have been trespassed upon and reduced into possession

by the plaintiffs. Ext.P7 is the copy of that application which

was objected to by the plaintiffs filing Ext.P8 objections. The

learned Munsiff after hearing both sides dismissed that

application vide Ext.P9 order. Propriety and correctness of

that order is challenged in the writ petition invoking the

supervisory jurisdiction vested with this court under Article

227 of the Constitution of India.

3. I heard the learned counsel on both sides.

Inviting my attention to paragraph 12 of the written

statement filed by the defendants, copy of which is

produced as Ext.P2, learned counsel for the

petitioners/defendants submitted that a specific contention

was raised that the plaintiff had trespassed upon a portion of

the property belonging to the defendants, but there was

some omission to raise a counter claim at that point of time.

After the commission report was filed which indicated the

portion of the property belonging to the defendant which

had been trespassed upon Ext.P7 application for amendment

was filed before the court raising a counter claim for

recovery of possession of that trespassed portion of their

W.P.(C).No.37071 OF 2008 Page numbers

property. The decision relied by the court below

“Bollepanda P.Poonacha & Another v K.M.Madapa” (AIR 2008

SCC 2003), it is submitted, dealt with a case where the

cause of action for the counter claim arose after the filing of

the written statement and it was in that context the apex

court held that the counter claim raised by way of

amendment cannot be entertained. The case in hand has no

parallel or connection with the reported decision as in the

previous written statement the pleading essential for raising

the counter claim had been raised, but that relief was

omitted to be canvassed specifically at that stage, is the

submission of the counsel. So far as the other amendment

canvassed with respect to retraction of the admissions made

in the written statement, the learned counsel fairly

submitted that rejection of that amendment by the court

cannot be seriously assailed of. On the other hand, the

learned counsel for the respondent/plaintiff submitted that it

was at the stage when the suit was ready for being included

in the special list for trial the amendment was filed seeking

the raising of a counter claim. It is further contended by the

counsel that in the written statement filed previously there

W.P.(C).No.37071 OF 2008 Page numbers

was no specific case that any operation of the property

belonging to the defendants had been trespassed upon by

the plaintiffs. So much so, no interference with Ext.P9 order

passed by the learned Munsiff, according to the counsel, is

called for.

4. Having regard to the submissions made and

taking note of the facts and circumstances presented

surrounding Ext.P9 order passed by the learned Munsiff with

reference to other exhibits tendered also, I find the learned

Munsiff has not examined the merit of Ext.P7 application in

relation to the question whether the counter claim raised is

essential to avoid multiplicity of proceedings and necessary

to give a quietus to the controversy arising for adjudication

in the suit. Perusal of Ext.P2 written statement disclose that

the defendants had in fact canvassed a case that a portion

of their property had been encroached upon after removing

the fence by the plaintiffs. So far as the raising of the

counter claim is concerned, it is intended to decide all

disputed questions arising in the litigation with finality so

that multiplicity of proceedings can be avoided. In respect

of raising of a counter claim after filing of the written

W.P.(C).No.37071 OF 2008 Page numbers

statement, the apex court in “Mahendra Kumar v State of

Madhya Pradesh” ((1987) 3 SCC 265) has held thus: ” Order

8 Rule 6(A) of Code of Civil Procedure does not, on the face

of it, bar the filing of a counter claim by the defendant after

he had filed the written statement. What is laid down under

Rule 6(A)(1) is that the counter claim can be filed, provided

the cause of action had accrued to the defendant before the

defendant had delivered his defence or before the time limit

for delivering his defence has expired, whether such counter

claim is in the nature of a claim for damages or not.” So

much so, in the given facts of the case where the cause of

action for raising the counter claim had accrued to the

defendant before filing of the written statement with the

essential foundation therefore already laid in his written

statement, I find that the mere fact that it was raised only

subsequently by way of an amendment to the written

statement cannot be given much significance to deny the

defendant an opportunity to canvass such counter claim in

the present suit and get it adjudicated on merit avoiding

multiplicity of proceedings. No prejudice will be caused to

the plaintiffss in permitting the defendant to raise his

W.P.(C).No.37071 OF 2008 Page numbers

counter claim as they would be given an opportunity to file

their answer to the counter claim. In that view of the

matter, I find that the counter claim raised by the

petitioners/defendants by way of amending their written

statement deserve to be allowed. But, so far as the

amendment sought for withdrawing the admissions made in

paragraph 11 of the written statement, needless to point

out, it cannot be permitted. Ext.P7 application of the

petitioners/defendants shall be allowed to the extent

indicated above. After carrying out the amendment in the

written statement raising the counter claim, the court below

shall afford reasonable opportunity to the

respondents/plaintiffs to file a written statement in answer

to the counter claim. Subject to the above observations, the

writ petition is disposed.

Sd/-

S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE

vdv