IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(C).No. 31334 of 2009(O) -------------------------- OS.NO. 50/2008 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONERS: --------------- 1. PARAMESWARAN, AGED 65 YEARS, S/O.SANKARAN, THADATHIL HOUSE, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 2. KOUSALYA, W/O.PARAMESWARAN, AGED 60, THADATHIL HOUSE, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 3. SATHEESAN, S/O.PARAMESWARN, AGED 36, THADATHIL HOUSE, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, REP.BY T.P.SAJEEV, S/O.PARAMESWARAN, POWER OF ATTORNEY HOLDER, DO. DO. BY ADV. SRI.M.S.UNNIKRISHNAN RESPONDENTS: --------------- 1. PATHROSE, AGED 72 YEARS, W/O.PAILY, KILAYATH HOUSE, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE. 2. ANNAMMA, AGED 70 YEARS, W/O.PATHROSE, KILAYATH HOUSE, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE. R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31334 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 4th November, 2009 JUDGMENT The writ petition is filed seeking mainly the following relief: “To call for the records relating to Exhibits P10 and P11 and quash the same by issuing a writ of certiorari.” 2. Petitioners are the defendants in O.S.No.50 of 2008 on the file of the Munsiff Court, Kolencherry. Suit is for permanent prohibitory injunction and the respondents are the plaintiffs. Resisting the suit claim, these defendants filed their written statement. The plaintiffs alleged of the attempts made by the defendants to widen a pathway, and sought for a decree of injunction restraining them from doing so. After filing of the written statement, the defendants moved an application for an amendment to incorporate a counter claim alleging that obstruction had been caused over the existing pathway, the width of which, according to them, was much more than what is alleged in the plaint, by the plaintiffs. Cause of action for raising such counter claim, according to the defendants, arose on 29.9.2009, i.e., later to the filing of the written statement. Subsequently, the defendants moved another application to correct the date as to the W.P.C.No.31334/09 - 2 - cause of action for raising the counter claim as 27.9.2008, on which date, according to them, the plaintiffs caused obstruction to the pathway. To both, the application moved for amending the written statement to incorporate the counter claim and also the application moved for amending the earlier application, plaintiffs filed objections. The learned Munsiff, after hearing both sides, dismissed both the applications, the former by P10 order, and the latter by P11 order. Propriety and correctness of P10 and P11 orders are 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 learned counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances present, I find no notice to the respondents/plaintiffs is necessary and it is dispensed with. From the submissions made and also perusing the impugned P10 and P11 orders with reference to the other exhibits tendered in the writ petition, I find that the application for amendment of the written statement to incorporate a counter claim in the suit was raised after commencement of the trial. P2 is the copy of the written statement filed by the defendants, which show the date 20th October, 2008. The orders of the court below impugned W.P.C.No.31334/09 - 3 - in the writ petition disclose that the written statement was actually filed on 22.10.2008. Cause of action for raising the counter claim by amending the written statement was stated by the defendants as having arisen on 29.9.2009, i.e., long after delivering of their defence in the suit by filing the written statement. Subsequently, the date of cause of action was sought to be corrected by filing another petition to show that it arose on 27.9.2008, i.e., a few weeks before the delivering of the defence. P10 and P11 orders passed by the court below would indicate that application for amending the written statement to raise the counter claim was filed after the examination of the plaintiff in the case. As rightly taken note of by the learned Munsiff the right of the defendants to raise a counter claim against the claim of the plaintiffs must relate to a cause of action accruing to the defendants against the plaintiffs either before or after the filing of the suit, but, before delivering of defence or the time fixed for delivering such defence has not expired. On the facts and circumstances presented in the case, the counter claim sought to be projected by the defendants after commencement of the trial, that too stating that the cause of action arose there of long after delivering of their defence, which, of course, was sought to be W.P.C.No.31334/09 - 4 - corrected to an earlier date prior to the filing of the written statement, was prima facie not entertainable and it was rightly and correctly rejected by the court below. There is no impropriety or illegality in P10 and P11 orders passed by the court below. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE