IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26270 of 2008(B)
1. JOSEPH, AGED 57 YEARS, S/O.THOMAS,
... Petitioner
Vs
1. SHAILA, @ SHINAL, AGED 45 YEARS,
... Respondent
2. KAMALASANAN, AGED 50 YEARS,
For Petitioner :SRI.A.C.DEVASIA
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/09/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C) NO. 26270 OF 2008
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Dated this the 1st day of September, 2008
JUDGMENT
Petitioner is the plaintiff and respondents the defendants
in O.S.19 of 2007 on the file of Sub Court, Kattappana. In the
suit, respondents along with the written statement filed a
counter claim as provided under Rule 6A of Order VIII of Code
of Civil Procedure. Petitioner did not file a written statement
within the time fixed by the Court as provided under sub rule 3
of Rule 6A of Order VIII. I.A. 488 of 2008 was filed to receive
the written statement to the counter claim. Along with the
application, Ext.P3 written statement was also filed. Under
Ext.P5 order the petition was dismissed.
2. Learned counsel appearing for petitioner was heard.
3. In view of the order to be passed in this petition, I do
not find it necessary to issue notice to the respondent.
4. Rule 6A provides for filing of counter claim by a
defendant in the suit. Under sub rule 2, a counter claim shall
have the same effect as a cross-suit so as to enable the Court to
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pronounce a final judgment in the same suit, both on the original
claim as well as the counter claim. Sub rule 3 provides that
plaintiff shall be at liberty to file a written statement in answer
to the counter claim of the defendant within such period as may
be fixed by Court. Sub rule 4 provides that a counter claim shall
be treated as a plaint and governed by the rules applicable to
plaints. Rule 6C provides the consequence of the failure of the
plaintiff to file a written statement to the counter claim. Under
the said rule, if the plaintiff makes default in putting up a reply
to the counter claim made by defendant, Court may pronounce
judgment against the plaintiff in relation of the counter claim or
make such order in relation to the counter claim as it thinks fit.
Rule 6G provides that rules relating to written statement shall
apply to the written statement filed by plaintiff in answer to the
counter claim.
5. Therefore, if plaintiff fails to file a written statement
to the counter claim as provided under sub rule 3 of Rule 6A of
Order VIII of Code of Civil Procedure, Court is competent to
pass a decree in the counter claim in favour of the defendant or
to make such order in relation to the counter claim, it thinks fit.
Ext.P5 order shows that though the written statement to the
WP(C)26270/08 3
counter claim, which is termed as replication by the petitioner in
I.A.488 of 2008 was rejected, no judgment was pronounced
against the plaintiff as provided under Rule 6C. Ext.P5 order
shows that the petition was dismissed stating “perused the
affidavit. The grounds are not supported by any documents.
And so petition cannot be allowed.” Learned Sub Judge did not
consider the application in the proper perspective. Hence
Ext.P5 order is quashed. Learned Sub Judge is directed to
reconsider I.A.488 of 2008 afresh and pass appropriate orders in
accordance with law.
Writ petition is disposed accordingly.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-