IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 RSA.No. 1014 of 2009() ---------------------- AS.58/2005 of SUB COURT, NEDUMANGAD IA NO.2113/2005 IN OS.297/1999 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/APPELLANT/DEFENDANT: ---------------------------------------- KRISHNANKUTTY, AGED 54, S/O.ARJUNAN ACHARI, RAMYA BHAVAN, MEENANKAL, KOTTAKKAKOM MURI, ARYANAD VILLAGE. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: -------------------------- 1. KANAKAMMA, D/O.RENGAMMAL, AGED 43, PANNIKKALA, MEENANKAL ROADARIKATHU VEEDU, ARYANAD VILLAGE P.O., NEDUMANGAD. 2. KRISHNAMMA, D/O.RENGAMMAL, AGED 45, PANNIKKALA, MEENANKAL ROADARIKATHU VEEDU, ARYANAD VILLAGE P.O., NEDUMANGAD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1014 of 2009 -------------------------------------- Dated this the 29th day of September, 2009. JUDGMENT This Second Appeal arises from judgment of learned Sub Judge, Nedumangad in A.S.No.58 of 2005 dismissing the appeal as not maintainable. Appellant is the defendant in O.S.No.297 of 1999 of the court of learned Munsiff, Nedumangad. That is a suit filed by the respondent for recovery of possession on the strength of title claimed by him. Appellant filed written statement in that case on 14.11.2000 contending that respondent had no title over the property and alternatively that the title if any of the respondent is lost by adverse possession and limitation. Case was posted for trial in the list on 6.7.2001 and following that, there was an exparte decree in favour of respondent on 25.7.2001 which this Court ultimately set aside in C.R.P.No.568 of 2003. The suit was thereafter posted for steps on 10.6.2005. That day , appellant filed a counter claim with I.A.No.2113 of 2005 the same. Application was opposed by respondent. Learned Munsiff as per order dated 2.7.2005 dismissed the application mainly for the reason that cause of action pleaded in the counter claim (30.12.2004) arose much after appellant filed written statement on 14.11.2000. That order was challenged before the learned Sub Judge in A.S.No.58 of 2005. Learned Sub Judge held that the appeal is against an order passed under Section 151 of the Code of Civil Procedure (for short, “the Code”) and is therefore not maintainable either under Order 41 or Order 43 of the Code. RSA No.1014/2009 2 No decree was also produced. Hence the appeal was dismissed as not maintainable. That judgment is under challenge in this Second Appeal. Learned counsel for appellant submits that dismissal of I.A.No.2113 of 2005 must be treated as a rejection of the counter claim and hence, the provisions under Order 7 Rule 11 of the Code would apply in which case rejection of the counter claim must be treated as a decree and hence appealable. 2. I am afraid, I cannot accept that contention. For, I.A.No.2113 of 2005 was filed under Section 151 of the Code to receive a counter claim. Learned Munsiff has passed the impugned order on that application. No decree has been drawn up and not required also as what is disposed of is an application under Section 151 of the Code. That order is certainly not appealable either under Order 41 or under Order 43 of the Code. Therefore, first appellate court was justified in holding that appeal against order under Section 151 of the Code is not maintainable. If that be so, the Second Appeal is also not maintainable. 3. On the facts also I am not inclined to think that interference is required. In the counter claim, cause of action stated by the appellant is as on 30.12.2004. Under Order 8 Rule 6A of the Code, though there is no limitation for filing a counter claim and it could be filed at any time before evidence is completed and the case is posted for judgment subject ofcourse to prejudice if any caused to the plaintiff, provisions of Order 8 Rule 6A of the Code require that the counter claim must be in respect of a cause of action which arose before RSA No.1014/2009 3 filing the written statement or before time provided for delivery of written statement has expired. This has been confirmed by the Apex Court in Shanti Rani Das Dewanjee v. Dinesh Chandra Day [(1997) 8 SCC 174] and Bollepanda P. Poonacha v. Madapa [2008 (2) KLT 9]. In this case written statement was filed by the appellant on 14.11.2000 and the cause of action pleaded in the counter claim arose almost four years thereafter on 30.12.2004. Either way I do not find reason to interfere with the judgment of the first appellate court and, no substantial question of law is also involved. Without prejudice to other rights if any of the appellant to establish the right claimed by him, this Second Appeal is dismissed. I.A.No.2263 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks