IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 WP(C).No. 19577 of 2008(E) -------------------------- OS.465/2004 of MUNSIFF COURT,VADAKKANCHERRY .................... PETITIONER: ------------- MARIYAM, AGED 66 YEARS, D/O.VATTAKKUNNEL JOSEPH, PANNISSERY DESOM, MANNALITHARA VILLAGE, TALAPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENTS: ------------- 1. JOY, S/O.VATTAKKUNNEL JOSEPH, PANNISSERY DESOM, MANNALITHARA VILLAGE, TALAPILLY TALUK, THRISSUR DISTRICT. 2. THRESIA, W/O.PUTHUR ANTONY, PANNISSERY DESOM, MANNALITHARA VILLAGE, TALAPILLY TALUK,THRISSUR DISTRICT. 3. ANTONY, PANNISSERY DESOM, MANNALITHARA VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 4. RIMMI, S/O.ANTONY, PANNISSERY DESOM,MANNALITHARA VILLAGE, TALAPPILY TALUK,THRISSUR DISTRICT. 5. JEHNY, S/O.ANTONY, PANNISSERY DESOM, MANNALITHARA VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.SURAJ.S FOR R2 TO 5 SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)19577/08 APPENDIX PETITIONER’S EXHIBITS:- EXT.P1:- TRUE COPY OF THE TITLE DEED NO.2735/92 DT.3.8.92 EXT.P2:- TRUE COPY OF THE PLAINT OF O.S.465/04 ON THE FILE OF MUNSIFF COURT, VADAKKANCHERRY EXT.P3:- TRUE COPY OF THE ORDER IN I.A.1498/04 IN O.S.465/04 EXT.P4:- TRUE COPY OF THE ORDER DT. 15.2.2005 IN I.A.1498/04 IN O.S.465/04 VACATING THE INTERIM ORDER AS AGAINST THE PETITIONER. EXT.P5:- TRUE COPY OF THE AMENDED WRITTEN STATEMENT EXT.P6:- TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF PETITION TO ACCEPT COUNTER CLAIM EXT.P7:- TRUE COPY OF THE PETITIION TO ACCEPT COUNTER CLAIM EXT.P8:- TRUE COPY OF THE COUNTER CLAIM EXT.P9:- TRUE COPY OF THE ORDER DT.3.6.08 IN I.A.419/05 RESPONDENT’S EXHIBITS:- NIL OKB/- //TRUE COPY// P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 19577 OF 2008 ------------------------------------------ Dated this the 6th day of August, 2008 JUDGMENT The question to be considered is whether a counter claim can be raised subsequent to the filing of the written statement. Learned Munsiff, Vadakkanchery dismissed I.A. 419 of 2005 in O.S. 465 of 2004 relying on the decision of the Apex Court in Bollepanda.P.Poonacha Vs. Madapa (2008 (2) KLT 9) holding that it is not permissible to file a counter claim after filing of written statement. That order is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner and respondents were heard. 3. The Apex Court in Bollepanda.P.Poonacha Vs. Madapa (2008 (2) KLT 9) did not lay down a law that a counter claim cannot be raised on any account, subsequent to the filing of the written statement. In fact that is a question which was settled by the apex court in the earlier decision in Remesh Chand Ardawatiya Vs. Anil Panjwani (AIR 2003 SC WP(C)19577/08 2 2508). It was held that a counter claim as of right could be raised along with a written statement and subsequent to the filing of the written statement counter claim could be raised either by filing a petition for amendment of the written statement as provided under Rule 17 Order VI of Code of Civil Procedure or by filing a subsequent statement as contemplated under Order VIII Rule 9 of Code of Civil Procedure. 4. This aspect was considered by this Court in Kerala Nadvathur Mujahideen Vs. Hussain Madvoor (2007 (1) KLT 92) and summarized the legal position in para 10 as follows:- “10. A defendant is entitled to raise the counter claim in the original written statement filed under R.1 of O.VIII as of right. But that does not mean that a defendant is entitled to raise a counter claim in respect of any cause of action accrued to him. He can only raise a counter claim in respect of a cause of action accruing to him against the plaintiff “either before or after the filing of the suit WP(C)19577/08 3 but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.” So also he can be allowed to raise the counter claim subsequent to the filing of the written statement either by getting his written statement amended as provided under O.VI R.17 or by filing a subsequent statement as provided under O.VIII R.9. If the consequence of permitting the counter by either of the last two modes would be protracting the trial, complicating the otherwise smooth flow of proceedings or causing delay in the progress of the suit by forcing repetition of the steps already taken by the court, the court would be fully justified in exercising its discretion not to entertain the counter claim sought to be raised. The main purpose for incorporating the provision of entertaining a counter claim WP(C)19577/08 4 is to avoid multiplicity of judicial proceedings so that the valuable time of the court could be saved and inconvenience that may be caused to the parties by contesting multiplicity of proceedings could be avoided. If the result of exercising the discretion in favour of the defendant would result in reopening of the trial or repetition of the steps already taken by recalling the witnesses, the discretion cannot be exercised in favour of the defendant. Ext.P6 order is to be appreciated in the background of this settled legal principles.” 5. Learned Munsiff was therefore not justified in dismissing the application on the ground that subsequent to the filing of written statement a counter claim cannot be raised. The other ground shown for dismissal of the application is a direction given by this Court to dispose the suit expeditiously. That is also not a ground to dismiss the application. WP(C)19577/08 5 6. Ext.P9 order is quashed. Munsiff is directed to re- consider I.A.419 of 2005 and pass appropriate order in accordance with law. The prohibition provided under Rule 6A of Order VIII is that for cause of action must have accrued prior to the filing of the written statement or the date fixed for filing of written statement. When a counter claim is sought to be raised, subsequent to the filing of written statement, Court has to exercise its discretion balancing the right of the petitioner as well as the prejudice that will be caused to the plaintiff. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-