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.
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W.P.(C).No.37071 OF 2008
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Dated this the 16th day of December 2009
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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