IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 OP(C).NO. 2889 OF 2011(O) -------------------------------------- AGAINST THE ORDER DATED 13/06/2011 IN IA 815/2011 IN OS.65/2010 OF MUNSIFF COURT, OTTAPPALAM .................... PETITIONER: -------------------- ABDUL RAHIMAN, S/O.KUNJU, MARAKKAM THODIVEEDU, CHERPULASSERY AMSOM DESOM, OTTAPALAM TALUK,PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): ---------------------------- 1. HUSSAIN,S/O.KUNJIPPU, MADATHIL PARAMBIL HOUSE, CHERUPULASSERY AMSOM DESOM, OTTAPALAM TALULK, PALAKKAD DISTRICT.PIN-679503 2. MUHAMMED, S/O.IBRAHIM, KARIMPANAPALLIYALIL HOUSE, CHERUPULASSERY AMSOM DESOM, OTTAPALAM TALULK, PALAKKAD DISTRICT.PIN-679503 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2889 OF 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF PAINT IN O.S.NO.65/2010 ON THE FILES OF MUNSIFF COURT, OTTAPALAM. EXT.P2:- TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.65/2010 ON THE FILES OF MUNSIFF COURT ,OTTAPALAM. EXT.P3:- TRUE COPY OF COUNTER CLAIM FILED BY DEFENDANTS IN O.S.NO.65 F 2010,ON MUNSIFF COURT, OTTAPPALAM EXT.P4:- TRUE COPY OF THE REPORT OF THE COMMISSIONER FILED IN O.S.NO.65 OF 2010,ON THE FILES OF MUNSIFF COURT,OTTAPPALAM, EXT.P4(A):- TRUE COPY OF THE PLAN OF THE COMMISSIONER FILED IN O.S.NO.65 OF 2010,ON THE FILES OF MUNSIFF COURT, OTTAPALAM. EXT.P5:- TRUE COPY OF THE I.A.NO.815/2011,O.S.NO.65/2010,ON THE FILES OF MUNSIFF COURT,OTTAPALAM. EXT.P6:- TRUE COPY OF THE COUNTER STATEMENT IN I.A.NO.815/2011, O.S.NO.65/2010,ON THE FILES OF MUNSIFF COURT,OTTAPALAM EXT.P7:- TRUE COPY OF THE ORDER DATED 13.6.2011 IN I.A.815/2011, ON THE FILES OF MUNSIFF COURT,OTTAPALAM. RESPONDANTS'S EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2889 of 2011 ==================================== Dated this the 01st day of September, 2011 J U D G M E N T Petitioner is the plaintiff in O.S. No.65 of 2010 of the court of learned Munsiff, Ottappalam. Alleging that petitioner permitted respondents to drain water through the suit property by laying pipes and errecting a tank in the suit property and later that permission was withdrawn, petitioner sued the respondents for a decree for mandatory injunction to direct respondents remove the said installations and for damages for use and unauthorized occupation. Respondents filed written statement denying the various allegations and contending that they have a right of easement by way of prescription and also a natural right to discharge water through the suit property. Later respondents filed counter claim under Order VIII Rule 6A of the Code of Civil Procedure (for short, “the Code') to direct petitioner remove the block created in the suit property for discharge of the water. Petitioner filed I.A. No.815 of 2011 to delete the counter claim. Contention of petitioner is that all individual owners of the adjacent properties through which respondents claimed natural right to O.P(C) No.2889 of 2011 -: 2 :- discharge water are to be impleaded in the suit and that the counter claim will cause prejudice to the petitioner. Learned Munsiff as per Ext.P7, order dismissed that application. That order is under challenge. 2. Learned counsel has drawn by attention to the sketch given in page 50 of the paper book to show that going by the case of respondents they have natural/prescriptive right to discharge water even through property beyond the suit property. 3. The question is whether learned Munsiff was justified in not deleting the counter claim. No doubt Order VIII, Rule 6C of the Code empowers the court to exclude counter claim where plaintiffs contends that the claim thereby raised ought not to be disposed of by way of a counter claim but in an independent suit and the court is satisfied of the same. 4. Even if the counter claim is excluded it is within the right of respondents to file a separate suit seeking the very same relief and in that situation the suits are to be tried and disposed of jointly. Question whether counter claim as prayed for is allowable or not is a different matter. I think, that matter is not required to be gone into in this proceeding. If granting relief on the counter claim would cause prejudice to the petitioner, that is a matter O.P(C) No.2889 of 2011 -: 3 :- which petitioner could urge before the learned Munsiff in the course of trial. I must bear in mind that it is with respect to the suit property regarding which petitioner claimed mandatory injunction and damages alleging that respondents are given licence to lay pipes and errect tank to discharge water that respondents have raised a claim. I am inclined to think that circumstances do not warrant exclusion of counter claim. It is open to the petitioner to resist the counter claim on whatever grounds that are available to him. Original Petition is dismissed without prejudice to the right of petitioner to resist the counter claim on whatever grounds as are available to him. THOMAS P. JOSEPH, JUDGE. vsv