IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 24493 of 2009(O) -------------------------- OS.92/2005 of MUNSIFF COURT, PALA .................... PETITIONER(S): --------------- GEORGE, S/O.DEVASSIA, NEDUMPARAPURATH HOUSE, MONIPALLY KARA AND VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): --------------- 1. JOSEPH, S/O.OUSEPH, NEDUMPARAPURATH HOUSE, MONIPALLY KARA AND VILLAGE, KOTTAYAM DISTRICT. 2. UZHAVOOR GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY, UZHAVOOR GRAMA PANCHAYATH, UZHAVOOR VILLAGE, KOTTAYAM DT. 3. MATHEW, S/O.OUSEPH, NEDUMPARAPURATH HOUSE, MONIPALLY KARA AND VILLAGE, KOTTAYAM DISTRICT. 4. MATHAI, S/O.OUSEPH, NEDUMPARAPURATH (NEDIYANIKUZHI), MONIPALLY KARA AND VILLAGE, KOTTAYAM DISTRICT. ADV. SRI.J.JULIAN XAVIER FOR R2 SRI.FIROZ K.ROBIN FOR R2 SRI.R.GIRISH FOR R1 SRI.PETER ISAAC FOR R4 SRI.ABEESH JOSE FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.24493/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED BY THE PETITIONER AND ANOTHER. EXT.P2: COPY OF THE WRITTEN STATEMENT DATED 27.7.2005 FILED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE WRITTEN STATEMENT AND THE COUNTER CLAIM DATED 15.2.2006. EXT.P4: COPY OF THE AFFIDAVIT AND PETITION SUBMITTED BY THE 1ST RESPONDENT DATED 3.7.2009. EXT.P5: COPY OF THE COUNTER CLAIM ALONG WITH WRITTEN STATEMENT DATED 3.7.2009 BY THE 1ST RESPONDENT. EXT.P6: COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 16.7.2009. EXT.P7: COPY OF THE ORDER DATED 16.7.2009 OF MUNSIFF'S COURT, PALA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.24493 OF 2009 () ----------------------------------- Dated this the 10th day of November, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: (i) to call for the records leading up to Ext.P7 and set aside the same. (ii) to dismiss Ext.P4 application filed by the 1st respondent seeking leave to raise the counter claim. 2. Petitioner is the 1st plaintiff in O.S.No.92 of 2005 on the file of the Munsiff Court, Pala. Suit is for injunction, both prohibitory and mandatory. Plaintiff seeking leave under Order I Rule 8 of the Code of Civil Procedure instituted the suit for the reliefs canvassed. Previously, there were only two defendants in the suit, but later, 3rd and 4th defendants got WPC.24493/09 2 themselves impleaded as additional defendants. The 3rd defendant, who is the present 4th respondent in the writ petition in his written statement raised a counter claim for injunction against the plaintiff. The 1st defendant, who resisted the claim by filing a written statement after filing of a commission report in the case, moved a petition seeking permission to receive his additional written statement, in which, he also raised a counter claim. Plaintiff objected to the application moved by the 1st defendant for reception of his additional written statement with counter claim. The court below passed Ext.P7 order for receiving the additional written statement of the 1st defendant. Propriety and correctness of Ext.P7 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 counsel on both sides. The additional written statement raising the counter claim by the 1st defendant was filed after issues were settled in the case, and further, such counter claim had been raised after the time for delivering the defence was over, is the submission of the WPC.24493/09 3 learned counsel for the petitioner to impeach Ext.P7 order passed by the court below. Reliance is also placed on Rohit Singh & Others v. State of Bihar (AIR 2007 SC 10) to contend that a counter claim cannot normally be entertained after settling of issues in the case. On the other hand, the learned counsel for the 1st defendant contending that in the given facts of the case, the counter claim raised by that defendant in the additional written statement require to be considered by the court for a fair and proper disposal of the suit on merits and there is no impropriety or illegality in Ext.P7 order accepting his additional written statement. Perusing Ext.P7 order, I find the court below has not adverted to nor considered the objections raised by the plaintiff against the receiving of the additional written statement of the 1st defendant raising a counter claim. The learned Munsiff has disposed of the application moved by the 1st defendant for receiving additional written statement statement with a one line order “Heard, allowed”. Evidently, Ext.P7 order reflects nonapplication of mind, leave alone nonconsideration of the principles applicable in accepting the written statement raising a counter claim. Order VIII Rue 6-A of the Code of WPC.24493/09 4 Civil Procedure enables the defendant to raise a counter claim in his written statement against the claim of the plaintiff in respect of a cause of auction accruing to the defendant, but, such counter claim has to be raised before the defendant has delivered his defence or before the time limited for delivering his defence has expired. According to the learned counsel for the plaintiff, in the present case, counter claim by way of additional written statement has been raised by the 1st defendant long after the filing of his previous written statement and after delivering of his defence has expired. Essentially, the objections so canvassed by the plaintiff require to be considered by the court below, but, that was not done. That being so, Ext.P7 order cannot be sustained. Setting aside Ext.P7 order, I direct the court below to consider the matter afresh and pass appropriate orders in accordance with law. Writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp WPC.24493/09 5