IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 32789 of 2008(C) --------------------------------------- AGAINST THE ORDER DATED 15/09/2008 IN I.A.1174/2008 IN OS.183/2007 of SUB COURT, PERUMBAVOOR ................................................. PETITIONER(S): ---------------------- RAMACHANDRAN NAIR, S/O. NANGU AMMA, AGED 72 YEARS, KIZHAKKEDATHUPUTHANPURAYIL HOUSE, IRAPURAM VILLAGE, KUNATHUNADU VILLAGE, ERNAKULAM DISTRICT. BY ADVS. SRI.PAUL MATHEW (PERUMPILLIL) SRI.P.V.SREENIJIN SMT.K.B.SONY SRI.PRASUN.S SRI.SANU.S.PANICKER RESPONDENT(S): -------------------------- JOSEPH, S/O. VARKEY, AGED 65 YEARS, KAYYANICKAL HOUSE, IRAPURAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.GEORGE VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32789 of 2008(C) A P P E N D I X EXHIBITS FOR THE PETITIONER :- EXT.P1 : COPY OF THE PLAINT IN O.S.NO.323/07. EXT.P2 : COPY OF THE SUIT O.S.NO.183/07 (OLD NO.O.S.106/07) EXT.P3 : TYPED COPY OF THE JUDGMENT IN TRANSFER APPEAL NO.2/08. EXT.P4 : COPY OF THE PETITION I.A.NO.1174/08. EXT.P5 : COPY OF THE MAIN PORTION OF THE ORDER IN I.A.1174/08 IN O.S.183/07. EXT.P6 : COPY OF ORDER IN I.A.1174/08 IN O.S.NO.183/08 DATED 15.9.08. EXT.P7 : COPY OF THE WRITTEN STATEMENT FILED IN O.S.NO.183/08 DATED 12.6.07. EXHIBITS FOR THE RESPONDENT : NIL. //TRUE COPY// P.A.TO JUDGE ami S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.32789 OF 2008 (C) ----------------------------------- Dated this the 16th day of July, 2009 J U D G M E N T The writ petition is filed by the defendant in O.S.No.183/2007 on the file of the Sub Court, Perumbavoor, challenging the order passed by the learned Sub Judge declining to entertain an application moved by him for amending his written statement to incorporate a counter claim under Order VIII Rule 6-C of CPC. The application for setting up such a counter claim by way of amendment was admittedly moved by the petitioner/defendant after the entire evidence in the case was recorded. Suit is one for perpetual prohibitory injunction filed by the respondent/plaintiff. Petitioner sought for amending his written statement to incorporate a counter claim to have a decree that a sale deed bearing No.3091/1998 is void and also for a declaration that the defendant continued to have title and right over the property covered by that deed. He also wanted further reliefs of directions from the court to the WPC.32789/08 2 plaintiff to hand over the prior documents, compelling him to do so by a decree of mandatory injunction. The amendment of the written statement for setting up a counter claim seeking the aforementioned reliefs was objected to by the plaintiff. The learned Sub Judge, after considering the merit of the application with reference to the objections, passed the impugned order holding that the defendant is not entitled to set up that counter claim in the suit and his amendment application is not entertainable. The correctness and propriety of that order passed by the learned Sub Judge is impeached in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. It is interesting to note that the defendant seeks to cancel or set aside a registered document executed in 1998 in a suit filed in 2006 at the fag end of the trial of the suit in 2008, that too by way of a counter claim after amending his written statement filed in the suit. It appears, the law of limitation is not applicable to WPC.32789/08 3 the defendant when he canvassed for a relief which apparently is seen to be barred by law of limitation. More than that aspect, it is also to be noticed that the procedure governing the entertainability of a counter claim as covered by Order VIII Rule 6-A of CPC, which reads as hereunder, interdicts the entertaining of the proposed amendment. [6-A. Counter-claim by defendant:- (1) A defendant in a suit may, in addition to his right of pleading 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 has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. The rule mandates that a counter claim in a suit filed by the plaintiff setting up any right or claim in respect of a cause of WPC.32789/08 4 action accruing to the defendant must be delivered “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 defense has expired”. True, even after filing of the written statement, the defendant may move an application under Order VIII Rule 9 CPC for modification or amendment of the pleading showing sufficient cause thereof, provided, the cause of auction for setting up a counter claim still survives. No such petition showing any cause, leave alone sufficient cause as contemplated under Order VIII Rule 9 of CPC was moved by the defendant when he sought for amendment of the written statement after the closing of the evidence in the case. Order VIII Rule 9 CPC mandates that no pleading subsequent to the written statement of the defendant other than by way of defense to set-off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit. Then also at the time of hearing, the learned counsel for the petitioner/defendant has also brought to my notice that the defendant has already filed a separate suit as O.S.No.323/2007 in respect of the very same reliefs set up by WPC.32789/08 5 way of counter claim sought to be incorporated by way of amending his written statement. So, in respect of a relief already claimed in a suit and that too pending for adjudication before the court, the defendant wants to set up a counter claim in the suit filed by the plaintiff. What could have been agitated in an independent suit can be raised by way of a counter claim is the primary object of Order VIII Rule 6-A of CPC. When a suit has been already filed for the relief claimed under the counter claim, the irresistible conclusion follows that the amendment of the written statement sought for, as observed by the learned Sub Judge, is nothing but an attempt to prolong the litigation. Writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp