IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 OP(C).No. 826 of 2010(O) ------------------------------ OS.8/2008 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER --------------- K.K.KABEER, S/O.KUNHU SAHIB AGED 61 YEARS, ANBATTU PARAMBA, VADAKANCHERY, MANGALAM,ALATHUR TALUK,PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): -------------------- BEEVI K.M, W/O.ABDUL NAZAR,AGED 29 YEARS REPRESENTED BY HER POWER OF ATTORNEY HOLDER SARFUDEEN, S/O.BEERAN KUTTY, CHEENIKKAL VEEDU, THRIKKANDIYUR VILLAGE, THRIKKANDIYUR PO, PIN 676 104, MALAPPURAM DISTRICT. BY ADV. SRI.RAJESH SIVARAMAN KUTTY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ THOMAS P.JOSEPH, J. ==================================== O.P(C) No.826 of 2010 ==================================== Dated this the 15th day of December, 2010 J U D G M E N T Respondent appears through counsel. 2. Defendant in O.S. No.8 of 2008 of the court of learned Additional Sub Judge, Palakkad challenges Exts.P7 and P8, orders dismissing I.A. No.830 and 829 of 2010, respectively for impleadment of additional respondents in the counter claim and for consequential amendment. Respondent sued petitioner for recovery of possession of the suit property on the strength of title and for injunction. Petitioner contended that property belonged to his brother, the late Haneefa as per sale deed No.881 of 1990 and the said Haneefa had created a mortgage in respect of the said property in favour of petitioner on 04.09.1996 for a loan availed by him. Stating so, petitioner made a counter claim for recovery of amount allegedly due to him. Haneefa had expired and according to the petitioner even before the suit was instituted. But in the counter claim petitioner did not implead legal heirs of the said Haneefa. Later came Exts.P3 and P4, applications for impleadment of legal heirs of the deceased Haneefa and for consequential O.P(C) No.826 of 2010 -: 2 :- amendment in the counter claim. Those applications were opposed by the respondent as per Exts.P5 and P6. Learned Sub Jude dismissed the application for impleadment for the reason that counter claim can be sought for against the plaintiff and that it cannot be raised against defendants who are not yet defendants. Dismissal of application for consequential amendment followed. Learned counsel for petitioner relying on the decision in Robit Singh v. State of Bihar (2007 [2] KLT SN 30 [SC] Case No.43) contended that though counter claim has to be directed against the plaintiff, incidentally, along with the plaintiffs it could be directed against co-defendants also and if necessary for the said purpose necessary parties could be impleaded in the counter claim. I have heard learned counsel for respondent also who contended that counter claim itself should have been excluded from the suit on the facts of the case. 3. Question for decision is whether Exts.P7 and P8 could be sustained. It is seen that learned Sub Judge has not referred to the relevant aspects while dismissing the prayer for impleadment. Proper course would have been to issue notice on Exts.P3 and P4, applications to the additional defendants sought to be impleaded, hear them also on the application having regard to the facts and circumstances of the case in the light of the O.P(C) No.826 of 2010 -: 3 :- relevant decisions on the point and decide whether such impleadment could be ordered. In that view of the matter it is not necessary for me to go into the question whether additional defendants sought to be impleaded are either necessary or proper parties to the counter claim or could be so impleaded. In the light of what I have stated above the impugned orders cannot be sustained and are liable to be set aside. The matter has to be remitted to the court below for fresh decision after issuing notice to the persons sought to be impleaded. Resultantly, Original Petition is allowed. Exhibits P7 and P8, orders are set aside. Exhibits P3 and P4, applications are remitted to the court below for fresh disposal in the light of the observations made above. I make it clear that I have not adverted to the merit or demerit of the claim of petitioner in the matter of impleadment and amendment. Needless to say that if the suit has already been listed for trial, trial shall be only after disposal of Exts.P3 and P4, applications. THOMAS P. JOSEPH, JUDGE. vsv