IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 19TH JULY 2007 / 28TH ASHADHA 1929 WP(C).No. 4158 of 2005(T) ------------------------- AGAINST THE ORDER DATED 13/01/05 IN IA 2325/2004 IN OS.360/2000 of MUNSIFF COURT, PUNALUR .................... PETITIONER: ------------ C.P.VENUGOPAL, S/O.PADMANABHAN ACHARI, CHITRANJALI, KOMALAMKUNNU, PUNALUR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT: --------------- C.P.SARASWATHY, MADHAVA SADANAM, PUNALUR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.S.GOPAKUMARAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 4158 OF 2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE SUIT AS OS NO.360/00 DT.21.10.2000. EXT.P2 : TRUE COPY OF THE COUNTER CLAIM FILED BY THE RESPONDENT ON 24.08.01. EXT.P3 : TRUE COPY OF THE WRITTEN STATEMENT AND REPLY TO THE COUNTER CLAIM FILED BY THE RESPONDENT DT.08.11.04. EXT.P4 : TRUE COPY OF THE IA NO.2325/04 DATED 20.12.04 FILED BEFORE THE MUNSIFF'S COURT, PUNALUR. EXT.P5 : TRUE COPY OF THE ORDER IN IA NO.2325/04 DT.13.01.2005. PIUS C. KURIAKOSE, J. ------------------------------- W.P.(C) No. 4158 OF 2005 ----------------------------------- Dated this the 19th day of July, 2007 JUDGMENT Sri.Bhagavat Sing, the learned counsel for the petitioner is absent. Heard Sri.S.Gopakumaran Nair, learned counsel for the respondent. Ext.P5 order by which the learned Munsiff dismissed the application filed by the petitioner, who was the 5th defendant in the suit, that the counter claim filed by the respondent (D2) also be dismissed since the suit has been dismissed is under challenge. 2. I do not find any infirmities about Ext.P5 in which the learned Munsiff has observed that it is mandatory by Order VIII Rule 6D CPC that counter claim is to be treated as cross suit and is to be tried notwithstanding the dismissal of the suit. Challenge against Ext.P5 fails. The writ petition is dismissed. After I delivered this judgment, Sri.Bhagavat Sing appeared before me and as desired by him I have heard him. He would very strenuously submitted that the counter claim cannot be maintained. There may be force in what he says. But it is open to the petitioner to raise this contention regarding the maintainability of the counter claim before the learned Munsiff himself when the counter claim is taken up WPC No.4158 of 2005 2 for trial. With that observation I reiterate the decision taken above, and dismiss the Writ Petition. PIUS C. KURIAKOSE, JUDGE btt WPC No.4158 of 2005 3