IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 CRP.No. 896 of 2007(E) -------------------------------- (O.S.7/2006 OF I ADDL.SUB COURT,ERNAKULAM) .................... PETITIONER/ PLAINTIFF: ------------------------------------ C.S. THAHIRA, AGED 42 YEARS, W/O. AZEEZ, H. NO. 43/2560, ANUGRAHA, S.R.M. ROAD, MAZJID LANE, KOCHI-18. BY ADV. SRI.B.JAYASANKAR. RESPONDENTS: ----------------------- 1. SUHARA SYED MOHAMMED, AGED ABOUT 59 YEARS, W/O. LATE SRI. SYED MOHAMMED, H. NO. 36/1074, DAYA MANZIL, JUDGE'S AVENUE, KALOOR, KOCHI-17, NOW RESIDING AT SHAJI MANZIL, H. NO. 61/2825, VADAKKATH PARAMBU, MANAPATTY PARAMBU 6TH CROSS, KALOOR, KOCHI-17. 2. V.S. BABU, AGED 38 YEARS, S/O. LATE SRI. SYED MOHAMMED, H. NO.36/1074, DAYA MANZIL, JUDGE'S AVENUE, KALOOR, KOCHI-17. ADV. SRI.A.BALAGOPALAN FOR R2, ADV. SRI.M.N.MANMADAN FOR R2. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 896 OF 2007 ------------------------------------------ Dated this the 4th day of July, 2008 O R D E R Plaintiff in O.S. 7 of 2006 on the file of Sub Court, Ernakulam is the plaintiff. Defendants are the respondents. Suit was filed for partition. First respondent is the mother and second respondent brother of the petitioner. Partition was sought in respect of the property allotted by the GCDA in lieu of the acquisition of the property originally owned by the father of petitioner and second respondent, and husband of first respondent. GCDA acquired 4 cents of the property belonging to deceased Syed Mohammed. It is in lieu of that acquisition plaint schedule property was allotted to him. Along with the written statement, second respondent filed a counter claim contending that in case the property is to be divided, then 3.962 cents of land allotted to the husband of the petitioner, Shri. A. Aziz, is also liable to be partitioned. Petitioner contended that counter claim raised in respect of the property owned by a third party to the suit cannot be agitated in this suit as a counter claim. The learned Sub Judge considered the maintainability of the counter CRP 896/07 2 claim under issue No.2 and 3 and held that the counter claim is maintainable and directed second respondent to implead the husband of the petitioner as one of the defendants in the counter claim. The order is challenged in this revision petition filed under Section 115 of Code of Civil Procedure. 2. Learned Counsel appearing for petitioner and second respondent were heard. 3. The learned Sub Judge directed second respondent to implead husband of the petitioner as a defendant in the counter claim and found the counter claim maintainable because the property sought to be divided in the counter claim was alleged to have been allotted to Aziz, husband of the petitioner in lieu of the property acquired and originally belonged to deceased Syed Mohammed and the property sought to be divided in O.S. 7 of 2006 is the property which was allotted to him in lieu of the acquired property. The question whether allotment in favour of Aziz was in lieu of the property acquired from Syed Mohammed is disputed by the petitioner. But it need not detain us while considering the question of maintainability of the counter claim. 4. Order VI Rule 17 of Code of Civil Procedure provides for a counter claim by the defendant. Under sub-rule (1) a CRP 896/07 3 defendant in a suit in addition to his right of pleading a set off under Rule 6 is entitled to set up a counter claim against the claim of the plaintiff, any right in respect of a cause of action agreeing to the defendant against the plaintiff either before or after filing of the suit but before defendant has delivered his defence or before the time limit for delivery of his defence has expired, whether such counter claim is in the nature of one for damages or not. Therefore the counter claim provided under sub-rule(1) is a claim against the plaintiff and not against a third party. 5. Even though Aziz is husband of the petitioner, he is not the plaintiff. In law he is a third party. The property sought to be divided in the counter claim even according to second respondent was allotted not in favour of the petitioner, but in favour of husband of the petitioner, who is not a party to the suit. Therefore, even if the claim of second respondent that 3.962 cents, the subject-matter of the counter claim, was allotted in lieu of the property acquired from Syed Mohammed is accepted, that claim as long as that land was allotted in favour of Aziz who is not the plaintiff or defendant in the suit, second respondent is not entitled to raise a counter claim for partition of that property in CRP 896/07 4 this suit. In such circumstances finding of the learned Sub Judge that the counter claim is maintainable is not sustainable in law. Even if the counter claim is maintainable, under Section 6(c) of Order VIII a plaintiff is entitled to submit to the court that the counter claim so raised may be disposed not by way of counter claim, but by way of an independent suit. It may be true that if counter claim is maintainable it is a matter to be tried jointly along with plaint, as the claim relates to the partition of the property which was obtained in lieu of the acquired property. But as Aziz to whom the property was allotted is not a party to the suit, counter claim cannot be entertained. In such circumstances the impugned order is quashed. The second respondent is at liberty to institute a separate suit for partition of the property, which is the subject-matter of the counter claim. After institution of suit second respondent is at liberty to move for joint trial of the suit along with the present suit. Revision petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-