IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 FAO.No. 34 of 2008() -------------------- AGAINST THE ORDER DATED 09/07/2007 IN OP.NO.2/2006 IN OS.45/2003 of SUB COURT, MANJERI .................... APPELLANT/DEFENDANT -------------------- ALAVI, S/O.UMMATHUR AVARANKUTTY KARUVAMBRAM AMSOM, KIDANGAZHI DESOM ERNAD TALUK. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: PLAINTIFF ---------------------- P.N. CHANDRASEKHARAN S/O.NARAYANAN NAIR, `SREYASS', KARUVAMBRAM P.O. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- F.A.O.NO.34 OF 2008 -------------------------------- Dated this the 12th day of June, 2008 JUDGMENT Raman,J. This is an appeal against the order dismissing the application to file a counter claim as a indigent person by the petitioner. The suit is one for money. The appellant/defendant filed a counter claim and the present petition was filed seeking the benefit under Order 33 of the C.P.C. The court below found that the counter claim itself was filed only after the written statement and beyond the time as fixed in the C.P.C. Going by the provisions contained in Order 33, we find that indigent application could be dismissed, when the claim itself is barred by any law for the time being in force. Since this is a counter claim, the same principle can be applied and if the counter claim itself is not preferred within the time as prescribed by law, then on that short ground, the application is liable to be rejected. There is no dispute that the counter claim itself was filed only after the written statement and beyond the time. If so, the indigent application is liable to be dismissed under Order 33 Rule 5 of the C.P.C. There is no merit in the -2- F.A.O.No.34/2008 appeal. At this stage, the learned counsel appearing for the appellant seeks an opportunity to raise his claim by filing a separate suit. Since we are dismissing the appeal on the short ground that the counter claim itself is filed beyond the time, it is not necessary to enter any finding on merits. In the circumstances and since the counter claim itself is belated, necessarily, the remedy of the petitioner is only to institute a fresh suit. With liberty as sought for the appeal is dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.