IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).NO. 21421 OF 2010(O) ------------------------------------------ OS.53/2008 OF MUNSIFF COURT, THALASSERY .................... PETITIONER(S): ---------------------- MEHJABIN FIZAL, W/O.FAIZAL, RESIDING AT LEEMA,IIND FLOOR, JUBILEE ROAD,THALASSERY, KANNUR DISTRICT REP.BY POWER OF ATTORNEY HOLDER BROTHER MEHBOOB AHMMED, S/O.L.P.KHADEEJA, RESIDING AT LULLUS, BOAT HOUSE, MANJAKKAL, MAHI-673310. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): --------------------------- 1. MANGALADAN HAMZA, S/O.LATE UPPI HAJI, RESIDING AT HASEENA MANZIL, JT ROAD, THALASSERY,KANNUR DISTRICT,PIN-670101 2. MANGALADAN ARAFATH, S/O.MANGALADAN HAMZA RESIDING AT HASSENA MANZIL,JT ROAD, THALASSERY KANNUR DISTRICT-670101. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21421 of 2010 ==================================== Dated this the 09th day of July, 2010 J U D G M E N T Petitioner, claiming to be the owner in possession of plaint A schedule and tenant in possession of plaint B schedule sued respondents for a decree for prohibitory injunction against the latter trespassing into plaint B schedule. Respondents resisted the suit and made a counter claim in the written statement seeking a mandatory injunction to direct petitioner surrender plaint B schedule property. Respondents proceeded on the basis that petitioner is in illegal occupation of plaint B schedule. Petitioner filed Ext.P6, I.A.No.254 of 2009 to exclude the counter claim since according to the petitioner, the counter claim is not to be tried along with her suit. Learned Munsiff dismissed that application as per Ext.P7, order which is under challenge in this Writ Petition. Learned counsel for petitioner referred me to the averments in the plaint and written statement. According to the learned counsel since it is the contention of respondents that petitioner is in illegal occupation of plaint B schedule, remedy of respondents is to file a separate suit and hence learned Munsiff ought to have excluded W.P(c) No.21421 of 2010 -: 2 :- the counter claim. 2. Order VIII Rule 6C of the Code of Civil Procedure enables the court to order exclusion of counter claim on the application of plaintiff. That provision says that if plaintiff contends that counter claim ought not to be disposed of as such but should be disposed of in an independent suit plaintiff may request the court for an order to exclude the counter claim. In the present case it is not disputed that the suit and the counter claim are in relation to plaint B schedule. There is no dispute that plaint B schedule belonged to the respondents. According to the petitioner she is a tenant of the said property while respondents would deny that claim and say that petitioner is in unlawful occupation of the said property. It is in that circumstance that counter claim is filed. I do not find any reason to direct respondents to prefer a separate suit and exclude the counter claim. Question whether respondents are able to prove their case and get relief as prayed for in the counter claim is an entirely different matter. It is also not the requirement of law to make a counter claim that the claim must be in accordance with or suiting plaint averments. On hearing learned counsel for petitioner and going through Exts.P6 and P7, I do not find justifiable reason to W.P(c) No.21421 of 2010 -: 3 :- order exclusion of the counter claim driving respondents to a separate suit. Writ Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv