IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 36239 of 2008(L) -------------------------- AGAINST THE ORDER DATED 29/10/2008 IN IA 2841/08 IN OS.107/1999 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER/RESPONDENT/2ND DEFENDANT: ----------------------------------------------------------------------- AUGUSTIN, S/O.PAPPU, PUTHUSSERY VELIYIL EZHUPUNNA SOUTH MURI, KODAMTHURUTH VILLAGE CHERTHALA TALUK. BY ADV. SRI.C.K.SAJEEV RESPONDENT/PETITIONER/PLAINTIFF: ------------------------------------------------------------- C.K.KUMARAN, S/O.KUNJAN AGED ABOUT 70 YEARS, KUMARA BHAVANAM., EZHUPUNNA SOUTH MURI, KODAMTHURUTH VILLAGE CHERTHALA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------- W.P(C) No.36239 OF 2008-L ------------------------------- Dated this the 10th December, 2008. JUDGMENT The second defendant in O.S107/99 on the file of the Munsiff's Court, Cherthala is the petitioner and the plaintiff in the suit is the respondent. The writ petition is filed seeking for an order setting aside Ext.P4 order dated 29.10.2008 on I.A.2841/2008 in the said suit. Ext.P4 order is passed by the court below on Ext.P2 application filed by the plaintiff to exclude the counter claim filed by the petitioner. By Ext.P4 order the court allowed Ext.P2 application and excluded the counter claim filed by the petitioner on 17.7.2008. The petitioner/second defendant assails the said order in this writ petition. 2. The counter claim in the suit was filed by the petitioner/second defendant on 17.7.2008. The suit was filed as early as in 1999 and the petitioner/second defendant filed written statement on 18.11.1999. In Ext.P1 counter claim the second defendant has stated that the cause of action for advancing the counter claim has arisen on 27.3.2008 when suit was restored to WPC 36239/2008 2 file and on 31.5.2008 the day on which plaintiff declared that defendants will not be permitted to have their passage through “C” schedule property. Thus it is evident that the cause of action arose even according to the petitioner/second defendant for the counter claim advanced in the suit only on 27.3.2008 and 31.5.2008, after almost 8 ½ years of the petitioner filing written statement on 18.11.1999. 3. Rule 6A of Order VIII CPC which provides for counter claim by the defendant is enabling the defendant to file counter claim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to him against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Further Rule 6C of Order VIII of the Code mandates that when the plaintiff contends the claim advanced in the counter claim ought not to be disposed of by way of counter claim but in an independent suit, at any time before the issues are settled in relation to the counter claim apply to the court for an order that such counter claim may be excluded and that the court may on hearing of such application make such order as it thinks fit. In the instant case Ext.P2 is an application filed by the plaintiff under Rule WPC 36239/2008 3 6(C) of Order VIII of the CPC. The contentions raised therein to exclude the counter claim is that the counter claim is filed on 17.7.2008 alleging a cause of action which has arisen 8 ½ years after the filing of the written statement by the petitioner/second defendant as cause of action alleged for the counter claim is on 27.3.2008 and 31.5.2008 and not cause of action that has accrued to him before he has delivered his defence or before the time limited for delivering his defence expired. The exclusion of the counter claim so advanced, by the order impugned, therefore cannot be faulted and the counsel for the petitioner has no other argument to assail Ext.P4 order except that the writ petition be disposed of without prejudice to the rights of the petitioner/second defendant to institute fresh suit. 4. In the result I dismiss this writ petition but without prejudice to the rights of the petitioner/second defendant to resort to appropriate remedies elsewhere. K.P.BALACHANDRAN JUDGE jj