IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 26270 OF 2008(B) -------------------------- OS.19/2007 OF SUB COURT, KATTAPPANA .................... PETITIONER: ------------- JOSEPH, AGED 57 YEARS, S/O.THOMAS, OZHAKAL HOUSE, KANCHYAR KARA, AYYAPPANCOIL VILLAGE IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASIA RESPONDENTS: ---------------- 1. SHAILA, @ SHINAL, AGED 45 YEARS, W/O.KAMALASANAN, VALIYAPURAKKAL HOUSE, CHELACHUVADU KARA, CHELACHUVADU.P.O.,KANJIKUZHI VILLAGE, THODUPUZHA TALUK-IDUKKI DISTRICT. 2. KAMALASANAN, AGED 50 YEARS, VALIYAPURAKKAL HOUSE, CHELACHUVADU KARA, CHELACHUVADU.P.O.KANJIKUZHI VILLAGE, THODUPUZHA TALUK-IDUKKI DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 26270 OF 2008 ------------------------------------------ Dated this the 1st day of September, 2008 JUDGMENT Petitioner is the plaintiff and respondents the defendants in O.S.19 of 2007 on the file of Sub Court, Kattappana. In the suit, respondents along with the written statement filed a counter claim as provided under Rule 6A of Order VIII of Code of Civil Procedure. Petitioner did not file a written statement within the time fixed by the Court as provided under sub rule 3 of Rule 6A of Order VIII. I.A. 488 of 2008 was filed to receive the written statement to the counter claim. Along with the application, Ext.P3 written statement was also filed. Under Ext.P5 order the petition was dismissed. 2. Learned counsel appearing for petitioner was heard. 3. In view of the order to be passed in this petition, I do not find it necessary to issue notice to the respondent. 4. Rule 6A provides for filing of counter claim by a defendant in the suit. Under sub rule 2, a counter claim shall have the same effect as a cross-suit so as to enable the Court to WP(C)26270/08 2 pronounce a final judgment in the same suit, both on the original claim as well as the counter claim. Sub rule 3 provides that plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by Court. Sub rule 4 provides that a counter claim shall be treated as a plaint and governed by the rules applicable to plaints. Rule 6C provides the consequence of the failure of the plaintiff to file a written statement to the counter claim. Under the said rule, if the plaintiff makes default in putting up a reply to the counter claim made by defendant, Court may pronounce judgment against the plaintiff in relation of the counter claim or make such order in relation to the counter claim as it thinks fit. Rule 6G provides that rules relating to written statement shall apply to the written statement filed by plaintiff in answer to the counter claim. 5. Therefore, if plaintiff fails to file a written statement to the counter claim as provided under sub rule 3 of Rule 6A of Order VIII of Code of Civil Procedure, Court is competent to pass a decree in the counter claim in favour of the defendant or to make such order in relation to the counter claim, it thinks fit. Ext.P5 order shows that though the written statement to the WP(C)26270/08 3 counter claim, which is termed as replication by the petitioner in I.A.488 of 2008 was rejected, no judgment was pronounced against the plaintiff as provided under Rule 6C. Ext.P5 order shows that the petition was dismissed stating “perused the affidavit. The grounds are not supported by any documents. And so petition cannot be allowed.” Learned Sub Judge did not consider the application in the proper perspective. Hence Ext.P5 order is quashed. Learned Sub Judge is directed to reconsider I.A.488 of 2008 afresh and pass appropriate orders in accordance with law. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-