IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 8799 of 2008(V) ------------------------- OS.548/2005 OF I ADDL.MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER: ------------ NESAN NADAR S/O. NALLATHAMPI NADAR, SANTHOSH BHAVAN PALAPPALLI MELE PUTEN VEEDU, NADUVOORKOLLA DESOM KOLAYIL PAKUTHY. BY ADV. SRI.R.GOPAN RESPONDENTS: ------------- 1. SUMATHY D/O. KAMALAM NIKSAL BHAVAN, VAZHARATHALA NADOORKOLLA DESOM, KOLAYIL VILLAGE. 2. STUART NIKSON NIKSAL BHAVAN VAZHARATHALA NADOORKOLLA DESOM KOLLAYIL VILLAGE. 3. SUJA NIKSON D/O.SUMATHY, NIKSAL BHAVAN VAZHARATHALA NADOORKOLA DESOM, KOLLAYIL VILLAGE. 4. DANIEL NIKSON S/O.NELSON NIKSAL BHAVAN, VAZHARATHALA NADOORKOLLA DESOM, KOLLAYIL VILLAGE. 5. STANLY JOHN PUSHPAVILASOM BUNGLOW, ADOTTUKONAM DEVIYODE IDAKODE VILLAGE, VILAVANCODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 8799 OF 2008 --------------------- Dated this the 14th day of March, 2008 JUDGMENT This writ petition is preferred with a prayer to set aside Ext.P9 order passed by the 1st Additional Munsiff court, Neyyattinkara, in IA 1229/08 in OS 548/05. It is an application filed by the defendants to receive the counter claim. A brief reference to the facts is necessary in this case. The case of the plaintiff is that the property described in the plaint schedule was assigned in his favour by the 1st defendant as per document No.1157 dated 6.6.02 of the Amaravila sub registry. The contention is that by virtue of that document, plaintiff is in possession. Since the defendants are attempting to interfere with the possession of the property, he prays for a declaration of his right and possession over the property. Defendants have filed a written statement as early as on 26.10.05 refuting the allegations in the plaint. His contention appears to be that in connection with the treatment of the wife of the 1st defendant, he borrowed a sum of Rs.13,000/- and executed a document on 6.6.02. It is only a security for the amount borrowed and it has not conferred any title on the plaintiff. He has also refuted the other averments in the plaint. Thereafter a Commissioner inspected the property and the matter is posted in the list on 18.3.08. On 28.2.08 an application is filed to receive the counter claim reiterating the WPC NO 8799/08 2 contentions raised in the written statement and prays for a reconveyance of the property etc. The court below considered the materials and did not allow the application. It is against that decision the present writ petition is filed. 2. There is no quarrel about the proposition that there is no time limit prescribed for filing a counter claim in a suit. But it does not mean that a party can file a counter claim as and when he pleases. A reference to Order VIII Rule 6-A would show that “a defendant in a suit, in addition to his right of pleadings a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence expired, whether such counter-claim is in the name of a claim for damages or not.” So the statutory prescription is to do it while delivering the defence or before the time limited for delivering the defence has expired. The very object of providing remedy under Order VIII Rule 6-A to the defendant in the suit is to avoid multiplicity of proceedings. So whenever the defendant, at the time of delivering his defence, feels that a right with respect to the claim which he requires adjudication, the law permits him to do so. If there are exceptional sound reasons certainly, the court can grant time for filing the counter claim even after the filing of the written statement. The suit itself is WPC NO 8799/08 3 filed for declaration of right and consequential injunction and the defence set up in the written statement is denying the same whereby the 1st defendant denies of his right being transferred to the plaintiff as per the document relied upon by the plaintiff. Such a defence is delivered in 2005 and the defendant is waiting to file his counter claim till 28.2.08. It has to be borne in mind that for receipt of such defence also there must be a reasonable grounds. Party cannot be permitted to raise his defence as and when he thinks and especially in a case of this nature where the suit is listed for trial on 18.3.08. Therefore, I do not find any mistake in the learned Munsiff’s view that it need not be entertained at a stage when the matter is listed for trial and the evidence is to commence on 18.3.08. There is no bona fide for filing such a belated application. Therefore I do not want to interfere with the finding of the court below. The writ petition is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 8799/08 4 WPC NO 8799/08 5 WPC NO 8799/08 6