IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 CRP.No. 602 of 2010() --------------------- OS.12/2008 of I ADDL.DISTRICT COURT, ERNAKULAM .................... REVN. PETITIONER/1st RESPONDENT/ADDL.8th DEFENDANT IN O.S: --------------------- FR. P N THOMAS KUTTY, S/o. THOMAS, RESIDING AT BALGRAM HOUSE, VALAYANCHIRANGARA PERUMBAVOOR, KUNNATHUNADUE TALUK BY ADV. SRI.K.K.APPU SRI.T.M.JOSEPH SHYLAN RESPONDENTS/PETITIONERS/NOT PARTY IN O.S: --------------- 1. JOHN K ALIAS S/o. ALIAS, AGED 37 YEARS KUNNATHU HOUSE NOTH PUNNAMATTAM KARA KADAVOOR VILLAGE, KOTHAMANGALAM TALUK ERNAKULAM DISTRICT 2. ELDO KURIAKOSE, AGED 33 YEARS S/o. KURIAKOSE, PALANATHU HOUSE PAINGATTOOR KARA, KADAVOOR VILLAGE KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.602 of 2010 --------------------------------------- Dated this 18th day of November, 2010 ORDER This revision arises from the order of learned Additional District Judge-I, Ernakulam on I.A.No.3863 of 2010 in O.S.No.12 of 2008. Plaintiffs in the suit prayed for a decree for appointment of an Advocate Commissioner to convene the meeting of Parishners of Carmel St. Pauls and St. peters Orthodox Syrian Church, to conduct election of the Managing Committee, elect trustees and for other reliefs. Petitioner/defendant No.8 filed written statement with a counter claim. In the counter claim petitioner prayed for a declaration that himself and his successor vicars are entitled to get possession of the suit property with the income in deposit with the receivers concerned and for other reliefs. Plaintiffs filed replication to the counter claim. While so, plaintiffs withdrew the suit but the counter claim proceeded further. At that stage respondents filed I.A.No.3863 of 2010 to implead them also in the counter claim since according to them they being Parishners of the above mentioned Church and interested in the subject matter, are interested in contesting the counter claim. Petitioner opposed the application but, vide the C.R.P.No.602 of 2010 : 2 : impugned order learned Additional District Judge allowed the application observing that presence of respondents as Parishners would enable the court adjudicate the dispute more effectively. That order is under challenge. Learned counsel for petitioner contended that so far as the counter claim is concerned, it is with respect to the the case set up by plaintiffs in the suit and hence respondents have no local standi in the matter. 2. This revision petition itself is not maintainable. In the light of the proviso to Section 115(1) of the Code of Civil Procedure (for short, “the Code”) when an order is made in the course of a suit or other proceeding, the High Court shall not entertain a revision against such order unless, the revision if allowed would terminate the suit or other proceedings. Applying that principle even if this revision is allowed and I.A.No.3863 of 2010 is dismissed, that would not have the effect of terminating the counter claim. Hence the remedy available to the petitioner was to challenge the impugned order under Article 227 of the Constitution. But, in the nature of the order I propose to pass after I have heard learned counsel and going through the records, I do not think it necessary to close this revision and ask petitioner to file a writ petition in challenge of the impugned order. C.R.P.No.602 of 2010 : 3 : 3. A counter claim need not be necessarily in answer to the claim of the plaintiff. For all legal and procedural purposes a counter claim shall be treated as an independent suit (See Ratnakaran Vs. P.T Thomas ((1990)2 KLJ 841). It is not disputed that in the present case subject matter of the suit and the counter claim are the same - administration and management of Carmel St. Pauls and St. peters Orthodox Syrian Church. Plaintiffs wanted appointment of an Advocate Commissioner to conduct election to the managing committee of the Church, elect trustees and for other reliefs. Petitioner in the counter claim wanted a declaration that himself and his successor vicars are entitled to get possession of the suit property with the funds in the hands of the receiver. In other words the counter claim also relates to the subject matter of the suit. 4. Now the question is whether learned Additional District Judge was correct in ordering impleadment of respondents in the counter claim. Learned counsel submits that since the suit has already been withdrew the application under Order I Rule 10(2) of the Code does not arise. That argument, I am unable to accept since I stated that a counter claim, for all legal and procedural purposes is to be treated as an independent suit. Hence provisions of Rule 10(2) of Order I of the Code would apply to a counter claim. C.R.P.No.602 of 2010 : 4 : Then the next question is whether respondents are necessary or proper parties in the counter claim. No doubt, petitioner is the master of counter claim but, it is not as if the court is without authority to implead necessary or proper parties in the suit or counter claim as may be even to the dislike of plaintiff/counter claimant. I stated that the subject matter of the counter claim and suit are the same. I also stated that midway, plaintiffs withdrew the suit. May be, they are respondents in the counter claim. Respondents herein claimed that they are parishners of the Church which is involved in the suit. True, that is not admitted by petitioner and that is a matter to be decided in evidence. Now, prima facie, there is the plea of respondents. They are interested in the subject matter. Learned Additional District Judge observed having regard to the facts and circumstances of the case that presence of respondents would enable the court adjudicate the dispute involved in the counter claim more effectively. I do not find reason to interfere with that finding and the ultimate order allowing I.A.No.3863 of 2010. Accordingly, leaving it open to the petitioner to contend if it is so contended that respondents are not Parishners of the Church at the appropriate stage this petition is dismissed. (THOMAS P JOSEPH, JUDGE) C.R.P.No.602 of 2010 : 5 : Sbna/-