IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 SA.No. 212 of 2000(A) -------------------------- AS.79/1994 of PRL. SUB COURT,KOTTAYAM OS.265/1992 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT(S):APPELLANT/DEFENDANT ----------------------------------------------- * 1. M.CHEERAN, S/O.MYLAN, RESIDING AT THENGUMTHANNATH HOUSE, VEROOR MURI, CHETHIPUZHA, CHANGANACHERRY. (DIED. LR'S IMPLEADED) * ADDL. 2ND APPELLANT IMPLEADED 2. K.KKUNJACHAN, S/O. KALI, KATTUPARAMBIL HOUSE, PUTHICHIRA, CHEERAMCHIRA P.O., CHANGANACHERRY, KOTTAYAM DISTRICT. * SUPPLEMENTAL 2ND APPELLANT IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED APPELLANT AS PER ORDER DATED 10/06/2005 IN I.A. NO.972/2005. BY ADV. SRI.KOSHY GEORGE RESPONDENT(S):RESPONDENTS/PLAINTIFFS ----------------------------------------------------- 1. AKHILA KERALA CHERAMAR HINDU MAHA SABHA, KURICHY, CHANGANACHERRY, REPRESENTED BY ITS PRESIDENT M.K.KUNJAN, RESIDING AT MAZHAVANCHERY VEETTIL, SACHIVOTHAMAPURAM, COLONY, KURICHY VILLAGE, CHANGANACHERRY. 2. A.K.THANKAPPAN, S/O.KUNJAN, AYKKARA VEETTIL, VEROOR MURI, CHETHIPUZHA VILLAGE, CHANGANACHERRY. 3. O.T.RAVEENDRAN, S/O.KUNJAN, RESIDING AT OTTAPALAM- MOOTTIL, VEROOR MURI, CHETHIPUZHA VILLAGE, CHANGANACHERRY. R1 BY ADVS. SRI.K.JAGADEESACHANDRAN NAIR SRI.J.KRISHNAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.582/2000 IN S.A. NO.212/2000 DISMISSED 22/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ------------------------------------- SA No.212 of 2000-A ------------------------------------- Dated this the 22nd day of June 2011 Judgment The defendant in OS No.265/92 before the Munsiff's Court, Changanacherry, has come up in appeal before this court against the concurrent decrees against him. The facts absolutely necessary for the purpose of this appeal are as follows : 2. According to the plaintiffs, by virtue of Exts.A14 and A15 dated 05.02.1122 and 15.02.1124 respectively, two items of properties having an extent of 99 cents comprised in Survey No.23/1/68 and 24.5 cents comprised in Survey No.23/4 of Vazhappally East Village was handed over to Cheramar Hindu Maha Sabha. The 99 cents so allotted is being used as a burial ground and the 24 cents is used for the purpose of conducting prayers where a building has been put up. According to the plaintiffs, the defendant with ulterior motives, filed MC SA 212/00 2 No.8/87 before the SDM Court, Kottayam against plaintiffs 2 and 3 setting up a claim over the suit properties without any basis. The SDM appointed the Village Officer as the Receiver and the Receiver took possession of the properties and the parties were left to agitate their claim in a civil court. That has necessitated the suit. 3. The defendant resisted the suit and also put up a counter claim. According to the defendant, the 99 cents comprised in Survey No.23/1/68 of Vazhappally East Village belongs to No.19 Veroor Branch of the Kerala Cheramar Sangham and it is being used as a burial ground by the members of the Scheduled and Backward Caste for over 50 years. According to the defendant, it is the said Sangham that remits the building tax in respect of the property. According to him, while the second and third plaintiffs were functioning as the Secretary and the President respectively of Branch No.19 of the Sangham, they acted against the interest of the Sangham and therefore, steps were initiated against them. That ended in SA 212/00 3 dispute between the parties and it is under those circumstances that the defendant had initiated MC No.8/87 before the SDM Court, Kottayam. The defendant claimed that Item No.1 of the plaint schedule property is in the exclusive possession of the Sangham and it is being used as a burial ground from time immemorial. The suit is bad for non-joinder of necessary parties. The defendant also preferred a counter claim for declaration of the rights of the Kerala Cheramar Sangham over plaint Item Nos.1 and 2. 4. The plaintiffs filed a written statement to the counter claim filed by the defendant. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A15 from the side of the plaintiffs. The defendant had DW1 examined and Exts.B1 to B6 marked. 6. After considering the evidence on record, the trial court came to the conclusion that the claim put forward by the plaintiff is genuine and accordingly granted a decree SA 212/00 4 as prayed for. The counter claim was dismissed holding that it takes in an additional item of property apart from the property involved in the suit and therefore, the counter claim need not be considered. 7. It appears that the defendant filed an appeal as AS No.79/94 before the Sub Court, Kottayam in which he also challenged the dismissal of the counter claim filed by him. While the lower appellate court concurred with the judgment and decree of the trial court, it did not consider the question whether the trial court was justified in dismissing the counter claim. That brings the defendant before this court. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.Can a court take judicial notice of any notification issued by the Government without any proof, either by production of the Gazette or a certified copy of the notification, coupled with publication of the same ? 2.Can a counter claim relating to or connected with the SA 212/00 5 original cause of action or matter be dismissed on eh ground that an independent suit will lie ? 3.Once a counter claim is made, is it not incumbent on the court to frame an issue and enter a finding on the counter claim while disposing of the suit ? 4.Is not the Government a necessary party in a suit between private parties claiming title and possession over any property which belonged to the Government ? 9. The learned counsel for the appellant mainly addressed one point for consideration. According to the learned counsel, the trial court was not justified in declining to consider the counter claim on the ground that it contains an item of property which was not involved in the suit. According to the learned counsel, going by the wording of Order VIII Rule 6A CPC, the scope of the provision is not so narrow as is now sought to be made by the trial court and it may take in any claim , the cause of action which arises before the filing of the written statement. Even assuming that a property, which is not a subject matter of SA 212/00 6 the suit was included in the counter claim, that cannot be a ground to decline to consider the counter claim. By not considering the counter claim, considerable prejudice is caused to the defendant. It is therefore contended that the judgment and decree of the courts below are unsustainable both on facts and in law. 10. The learned counsel for the respondents, on the other hand, contended that the defendant in the suit was impleaded in his individual capacity and not in a representative capacity and therefore, the trial court was perfectly justified in declining to entertain the counter claim. It is also pointed out that the counter claim was in the individual capacity of the defendant and there was nothing to show that he was competent to represent the Kerala Cheramar Sangham. The learned counsel also pointed out that if the defendant has any grievance regarding the dismissal of the counter claim, it was open for him to institute a separate suit in the proper capacity and agitate his grievance. According to the learned counsel, no SA 212/00 7 grounds are made out to interfere with the judgment and decree of the counts below. 11. It is difficult to accept the contentions of the learned counsel for the respondents. Order VIII Rule 6A CPC enables the defendant to file a counter claim. The limitation is only that the cause of action should have arisen before the filing of the written statement. It does not limit the subject matter of the counter claim to the subject matter of the suit. In the case on hand, there are rival claims regarding the properties involved in the suit. Even assuming that the counter claim took in another item of property, the relief prayed for against the plaintiffs was in respect of the suit property also. Therefore, it could not be said that the counter claim was bad in law. Going by the provisions of the Code of Civil Procedure, courts cannot refuse to entertain counter claims unless there are justifiable grounds to do so. The questions as to whether the defendant could sue on behalf of the Kerala Cheramar Sangham and whether he was authorised to do so in SA 212/00 8 relation to the counter claim, are all matters which ought to have been gone into and the counter claim ought to have been considered. In the replication filed by the plaintiffs to the counter claim filed by the defendant, all that is stated is that the defendant in the suit has been sued in his individual capacity. Nowhere in the replication, it is stated that the defendant who has laid the counter claim is not authorised to institute the claim on behalf of the Sangham or that it is defective for other reasons. At any rate, these aspects have not been gone into by the trial court as well as by the lower appellate court. In the light of the fact that the counter claim has not been considered at all, this court has no option other than to remand the matter to the trial court. In the result, this appeal is allowed. The judgment and decree of both the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the trial SA 212/00 9 court on 02.08.2011. They will be at liberty to adduce further evidence, if so advised. The trial court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of the parties before it. P.Bhavadasan, Judge sta SA 212/00 10