IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 37071 of 2008(L) ------------------------------------- AGAINST THE ORDER IN OS. 1365/2005 AND OS 1400/2007 OF of PRL.MUNSIFF COURT,TRIVANDRUM .................... PETITIONER(S): ----------------------- 1. N.SIVARAMAN NAIR, S/O.NARAYANA PILLAI, 66 YEARS, TC.11/1755, NANDANAM, GOUREESAPATTOM, THIRUVANANTHAPURAM. 2. RAJALEKSHMI, DAUGHTER OF NARAYANA PILLAI 70 YEARS, R/AT.11/1328, SOUPARNIKA, GOUREESAPATTOM, THIRUVANANTHAPURAM. BY ADVS. MR.V.SURESH MR.G.SUDHEER RESPONDENT(S): ------------------------- 1. S.SREEDEVI, GFOPALAKRISHNA VILASOM, KULATHOOR, TRIVANDRUM. 2. S.UMA, DO.DO. 3. S.REMA, PERUMPADA VEEDU, KAZHAKKUTTAM PO 4. S.PADMA, GOPALAKRISHNA VILASOM,KULATHOOR PO., TRIVANDRUM. R1, 2, R3 BY ADV. MR.G.S.REGHUNATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37076/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT DTD. 30.9.05 FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. P2:- COPY OF THE WRITTEN STATEMENT IN OS. 1365/05 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE INTERIM ORDER IN WPC. 2969/08 DTD. 31.1.08 BEFORE THIS HONOURABLE COURT. P4:- COPY OF THE ORDER IN WPC. 2969/08 DTD. 19.2.08 OF THIS HONOURABLE COURT. P5:- COPY OF THE PLAINT FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. P6:- COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. P8:- COPY OF THE OBJECTION FILED THE RESPONDENT BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. P9:- COPY OF THE ORDER IN IA. 6540/07 IN OS. 1365/05 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.37071 OF 2008 -------------------------------- Dated this the 16th day of December 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Granting a writ of certiorari or such other writ, order or direction as the court may consider appropriate calling for the records relating to Ext.P9 order and quashing Ext.P9. ii) Allowing such other relief as the court may consider appropriate in the circumstances of the case and in the interests of justice. 2. Petitioners are the defendants in O.S No.1365 of 2005 on the file of the Principal Munsiff Court, Thiruvananthapuram. Suit is one for fixation of boundary and injunction, both prohibitory and mandatory, and the respondents are the plaintiffs. These petitioners/defendants have filed a written statement resisting the suit claim. After an advocate commissioner deputed by the court conducted a local inspection and measured out the property with the assistance of a surveyor and filed a report and plan, the defendants moved an application for amending their written statement to carry out some corrections and also to raise a counter claim for recovery of the property which is alleged W.P.(C).No.37071 OF 2008 Page numbers to have been trespassed upon and reduced into possession by the plaintiffs. Ext.P7 is the copy of that application which was objected to by the plaintiffs filing Ext.P8 objections. The learned Munsiff after hearing both sides dismissed that application vide Ext.P9 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Inviting my attention to paragraph 12 of the written statement filed by the defendants, copy of which is produced as Ext.P2, learned counsel for the petitioners/defendants submitted that a specific contention was raised that the plaintiff had trespassed upon a portion of the property belonging to the defendants, but there was some omission to raise a counter claim at that point of time. After the commission report was filed which indicated the portion of the property belonging to the defendant which had been trespassed upon Ext.P7 application for amendment was filed before the court raising a counter claim for recovery of possession of that trespassed portion of their W.P.(C).No.37071 OF 2008 Page numbers property. The decision relied by the court below “Bollepanda P.Poonacha & Another v K.M.Madapa” (AIR 2008 SCC 2003), it is submitted, dealt with a case where the cause of action for the counter claim arose after the filing of the written statement and it was in that context the apex court held that the counter claim raised by way of amendment cannot be entertained. The case in hand has no parallel or connection with the reported decision as in the previous written statement the pleading essential for raising the counter claim had been raised, but that relief was omitted to be canvassed specifically at that stage, is the submission of the counsel. So far as the other amendment canvassed with respect to retraction of the admissions made in the written statement, the learned counsel fairly submitted that rejection of that amendment by the court cannot be seriously assailed of. On the other hand, the learned counsel for the respondent/plaintiff submitted that it was at the stage when the suit was ready for being included in the special list for trial the amendment was filed seeking the raising of a counter claim. It is further contended by the counsel that in the written statement filed previously there W.P.(C).No.37071 OF 2008 Page numbers was no specific case that any operation of the property belonging to the defendants had been trespassed upon by the plaintiffs. So much so, no interference with Ext.P9 order passed by the learned Munsiff, according to the counsel, is called for. 4. Having regard to the submissions made and taking note of the facts and circumstances presented surrounding Ext.P9 order passed by the learned Munsiff with reference to other exhibits tendered also, I find the learned Munsiff has not examined the merit of Ext.P7 application in relation to the question whether the counter claim raised is essential to avoid multiplicity of proceedings and necessary to give a quietus to the controversy arising for adjudication in the suit. Perusal of Ext.P2 written statement disclose that the defendants had in fact canvassed a case that a portion of their property had been encroached upon after removing the fence by the plaintiffs. So far as the raising of the counter claim is concerned, it is intended to decide all disputed questions arising in the litigation with finality so that multiplicity of proceedings can be avoided. In respect of raising of a counter claim after filing of the written W.P.(C).No.37071 OF 2008 Page numbers statement, the apex court in “Mahendra Kumar v State of Madhya Pradesh” ((1987) 3 SCC 265) has held thus: “ Order 8 Rule 6(A) of Code of Civil Procedure does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement. What is laid down under Rule 6(A)(1) is that the counter claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limit for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not.” So much so, in the given facts of the case where the cause of action for raising the counter claim had accrued to the defendant before filing of the written statement with the essential foundation therefore already laid in his written statement, I find that the mere fact that it was raised only subsequently by way of an amendment to the written statement cannot be given much significance to deny the defendant an opportunity to canvass such counter claim in the present suit and get it adjudicated on merit avoiding multiplicity of proceedings. No prejudice will be caused to the plaintiffss in permitting the defendant to raise his W.P.(C).No.37071 OF 2008 Page numbers counter claim as they would be given an opportunity to file their answer to the counter claim. In that view of the matter, I find that the counter claim raised by the petitioners/defendants by way of amending their written statement deserve to be allowed. But, so far as the amendment sought for withdrawing the admissions made in paragraph 11 of the written statement, needless to point out, it cannot be permitted. Ext.P7 application of the petitioners/defendants shall be allowed to the extent indicated above. After carrying out the amendment in the written statement raising the counter claim, the court below shall afford reasonable opportunity to the respondents/plaintiffs to file a written statement in answer to the counter claim. Subject to the above observations, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv