IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 904 of 2008(G) ------------------------------------ PETITIONERS: --------------------- 1. SOMARAJAN, S/O NAKULAN, GOKULAM, ASRAMAM, KOLLAM. 2. SWAMINATHAN, GOKULAM, ASRAMAM, KOLLAM. BY ADV. SRI.B.MOHANLAL, ADV. SRI.SAIJU. S. RESPONDENT: ---------------------- SURESH BABU, S/O VASUDEVAN, SRUTHI, KADAPPAKKADA, KOLLAM. BY ADV. SRI.KALLADA M.BALACHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.904/2008-G: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PLAINT IN C.S. NO. 573/2004 OF THE MUNSIFF COURT, KOLLAM. EXT.P.2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE PETITIONERS. EXT.P.3: COPY OF THE INTERLOCUTORY APPLICATION NO. 2990/2007 ON 03/07/2007 FILED BY THE PETITIONERS. EXT.P.4: COPY OF THE PETITION FILED BY THE RESPONDENT. EXT.P.5: COPY OF THE ORDER IN I.A. NO. 2990/2007 DTD. 03/08/2007. EXT.P.6: COPY OF THE I.A. NO. 3557/2007 DTD. 07/08/2007 FILED BY THE PETITIONERS. EXT.P.7: COPY OF THE OBJECTION FILED BY THE RESPONDENT DTD. 08/08/2007. EXT.P.8: COPY OF THE REVIEW PETITION I.A. NO. 4289/2007 IN THE PROPER FORMAT FILED BY THE PETITIONERS. EXT.P.9: COPY OF THE OBJECTION FILED BY THE RESPONDENT. EXT.P.10: COPY OF THE ORDER IN I.A. NO. 4289/2007 DTD. 24/10/2007. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. M.N.KRISHNAN, J ===================== W.P.(C) No.904 OF 2008 ===================== Dated this the 28th day of January 2008 JUDGMENT This writ petition is filed with a prayer to quash the order rejecting the counter claim. The original defendant in the suit filed a counter claim and along with the same remitted 1/10th of the court fee. Thereafter he moved an application for enlargement of time for accepting the balance court fee as I.A.No.2990/2007. In this I.A., the court below held that it has no power to extend the time and therefore rejected the counter claim and dismissed the application. So, it has to be understood that the court, on the strength of the finding that it has no power to enlarge time for payment of a court fee on a counter claim dismissed the prayer for enlargement of time and as a consequential order rejected the counter claim. If it is found that the court has got the power to extend time for payment of court fee, then the order rejecting the counter claim has to be automatically revived for the reason they are interdependent orders. It is on that basis, I am proceeding to dispose of the matter. 2. The court below held that Section 4A of the Court Fees Act only WP(C) 904/2008 -:2:- deals with the levy of fee at the time of the institution of the suit. The court read the proviso and held that the court has got the power to extend the time upto the period of 30 days. Therefore the court was of the view that it only deals with a plaint and therefore it cannot be applied to a counter claim. I am afraid that the court has lost site of Order VIII Rule 6-A(4) C.P.C which reads as follows: “The counter claim shall be treated as a plaint and governed by the rules applicable to plaints”. Similarly, Section 8 of the Court Fees Act also makes it very clear that a written statement pleading a set off or counter claim shall be chargeable with fee in the same manner as a plaint. There are decisions of the Apex Court as well as this Court to the extent of holding that counter claim in a suit is a cross plaint and all the formalities that are necessary in an independently instituted suit is applicable to counter claims. So, there cannot be any doubt regarding the fact that the counter claim is to be treated as a plaint. When the counter claim is treated as a plaint and as court fee is required to be paid, the logical corollary under Section 4A of the Court Fees Act will also equally be applicable to counter claims. 3. Then the next question arises whether there are grounds to extend the time fixed by Section 4A for payment of court fee. A Division Bench of this Court in the decision reported in Shajahan v. Kamala Narayanan(1997 WP(C) 904/2008 -:3:- (1) KLT 569) held that “under Section 4A of the Court Fees Act, the court has power to extend the time for payment of 9/10th court fee payable under Section 4A beyond the period of 30 days if sufficient reasons are shown”. So, the approach of the court below in dismissing the review application is erroneous. The court has got the power to extend the time and just like a plaint, when it is rejected, the remedy provided is an appeal as well as a review. Equally the same principle will apply to the counter claims as well. If there are sufficient grounds to review the order, the court below has to review the same especially in the present case on the basis of the fact that there is an error apparent on the face of the record in coming to the conclusion that the court has no power to extend the time with respect of counter claims. Therefore, I set aside the order passed by the court below and direct to consider the review application afresh, bearing in mind the principle that the counter claim is also a plaint and all the benefits that are conferred for payment of court fee under Section 4A of the Court Fees Act is equally applicable to the counter claims as well with one condition that there must be sufficient reason for extending the time. Till that application is considered on merits, the court below is directed not to proceed with the trial of the case. WP(C) 904/2008 -:4:- Writ petition is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-