IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 6015 of 2009(O) ------------------------- CMA.189/2004 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.378/2001 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- V. DEVARAJAN, S/O. VASUDEVAN, VAISAKH, V.S.S.C ROAD, KULATHOOR.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): --------------- 1. K.C. LALITHAMMA, W/O. YESODARAN, VALIYAVILAKATHU VEEDU, ULLOOR, CHERUVAIKKAL VILLAGE, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM. 2. K.S. LAL MOHAN, S/O. KRISHNANKUTTY NAIR, SREENIVAS, THAMARAKKULAM LANE, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM. 3. LATHA, W/O.K.S. LALMOHAN, SREENIVAS, THAMARAKKULAM LANE, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.R.S.KALKURA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6015 OF 2009 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : TRUE COPY OF THE PLAINT AS O.S. NO. 378/2001 BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM FILED BY THE 1ST RESPONDENT DATED 03.03.2001. EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM FILED BY THE PETITIONER IN O.S. NO. 378/2001 DATED 08.10.2001. EXHIBIT P3 : TRUE COPY OF THE REPLICATION IN O.S. NO. 378/01 SUBMITTED BY THE 1ST RESPONDENT DATED 26.08.2003. EXHIBIT P4 : TRUE COPY OF I.A. NO. 2508/04 IN O.S. NO. 378/01 DATED 03.03.2004 FILED BY 1ST RESPONDENT. EXHIBIT P5 : TRUE COPY OF I.A. NO. 4034/04 IN O.S. NO. 378/01 DATED 15.05.2004 FILED BY THE PETITIONER. EXHIBIT P6 : TRUE COPY OF THE OBJECTION IN O.S. NO. 378/01 DATED 13.07.2004 FILED BY 1ST RESPONDENT. EXHIBIT P7 : TRUE COPY OF THE ORDER IN I.A. NO. 4034/2004 IN O.S. NO. 378/2001 DATED 24.07.2004 PASSED BY THE RENT CONTROL COURT, THIRUVANANTHAPURAM. EXHIBIT P8 : TRUE COPY OF THE JUDGMENT DATED 07.03.2008 IN C.M.A. NO. 189/2004 OF THE 1ST ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM. /TRUE COPY/ P.A. TO JUDGE. V. CHITAMBARESH, J -------------------------------- WP(C) NO. 6015 OF 2009 ------------------------------------ Dated this the 24th day of November, 2011. JUDGMENT The third defendant in a suit for injunction had filed a counter claim for declaration of title and for putting up boundaries. It appears that the plaintiffs and defendants 1 and 2, subsequently entered into a compromise under Order 23 Rule 3 CPC. The case stood adjourned on 10.03.2004 and 16.03.2004 to enable the third defendant to lead evidence in support of the counter claim. Eventually the suit against the third defendant was dismissed and his counter claim was dismissed for default. An application to restore the counter claim for disposal on merits has been dismissed concurrently by the courts below. 2. The contention of the third defendant was that he was unable to avail leave on the date of hearing and was engaged in 'urgent personal official duties'. True it is the details of the 'urgent personal official duties' have not been made available by the third respondent. Nevertheless substantial rights are involved and it will be the fitness of 2 WP(C) No. 6015/2009 things if there is an adjudication of the counter claim on merits. The petitioner can be put to terms for condonation of laches on his part in prosecuting the counter claim. Exts.P7 and P8 orders refusing to restore the counter claim back to file are hence set aside. The counter claim in O.S. No. 378 of 2001 is restored subject to the condition that the writ petitioner pays a sum of Rs.10,000/- as costs to Mr. R.S. Kalkura, the learned counsel for the first respondent/plaintiff within a period of two weeks from today. Respondents 2 and 3 are only defendants 1 and 2 in the suit against whom no relief has been claimed by the third defendant in the counter claim. Respondents 2 and 3 are unnecessary parties to this writ petition. The order impugned in the writ petition will stand confirmed if there is default on the part of the petitioner in paying the costs as directed. The writ petition is disposed of as above. V. CHITAMBARESH JUDGE dnc