IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 28217 of 2008(H) -------------------------- I.A.447/08 IN OS.17/2007 of SUB COURT,KATTAPPANA .................... PETITIONER/PLAINTIFF-PETITIONER ----------------------------------- A.N. THANKACHAN, ASSARIPARAMBIL HOUSE, PEZHUMKANDOM KARA, KATTAPPANA VILLAGE. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS/DEFENDANTS-RESPONDENTS: --------------------------------------------------------- 1. M.V.SUKUMARAN, S/O. VELU, MENACHERIL HOUSE, LAKKATTOOR KARA, KOTTAYAM. 2. REKHUNANDHAN, S/O. NARAYANAN, KOCUMENT WRITER, MALEKKUNNEL HOUSE, KATTAPPANA, KATTAPPANA VILLAGE. ADV. SRI.MATHEW PHILIP EDAPPALLIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 28217/08) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.17/07 OF THE SUB COURT, KATTAPPANA DATED 19.2.2007. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN O.S.NO.17/2007 OF THE SUB COURT, KATTAPPANA DATED 9.7.2007. EXT.P3: TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM FILED BY THE PLAINTIFF IN O.S.NO.17/2007 OF THE SUB COURT, KATTAPPANA DATED NIL. EXT.P4: TRUE COPY OF THE ORDER OF THE SUB COURT, KATTAPPANA IN I.A.NO.447/08 IN O.S.NO.17/07 DATED 5.7.2008. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28217 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 14th December, 2009 JUDGMENT The petitioner in O.S.No.17 of 2007 on the file of the Sub Court, Kattappana has filed this writ petition challenging the order passed by the learned Sub Judge rejecting his written statement to the counter claim raised by the defendants in the suit/respondents in the writ petition. The above suit is filed seeking a decree of specific performance of an agreement of sale. Resisting the suit claim, the first defendant filed a written statement, in which a counter claim of perpetual prohibitory injunction was claimed in respect of the plaint property against the plaintiff. Whereas the plaintiff alleged that he has been put in possession of the suit property as part performance of the agreement of sale, disputing that case the 1st defendant contended that he continues to be in possession of the property and he claimed a relief of perpetual prohibitory injunction against the plaintiff. To the counter claim, admittedly, the plaintiff did not file the written statement in time. Later, a written statement was filed with a petition to receive the same, but, that was rejected by the learned Sub Judge vide P4 order. Propriety and correctness of P4 order is challenged in the writ petition invoking the supervisory jurisdiction W.P.C.No.28217/08 - 2 - vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. From the facts and circumstances presented, apparently, there is laches, if not culpable negligence, on the part of the plaintiff in not filing writen statement in time to the counter claim raised by the 1st defendant in his written statement. However, having regard to the totality of the facts and circumstances presented and also the issues arising for adjudication, I find an opportunity has to be extended to the plaintiff to raise his contentions to the counter claim put up by the 1st defendant. In that view of the matter, I find P4 order rejecting his written statement is liable to be interfered with, but, all the same, the injury likely to be suffered by the first defendant has also be taken into account. Therefore, acceptance of the written statement of the plaintiff to the counter claim of the first defendant will be subject to payment of Rs.1000/- (Rs. One Thousand only) as cost to the first defendant/1st respondent within two weeks from the date of this judgment. Cost ordered above shall be paid to the counsel appearing for the 1st respondent/1st defendant in this court and a memo filed evidencing such payment forthwith. Writ Petition is disposed as above. Post after two weeks for report on compliance. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.28217/08 - 3 -