IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 OP(C).NO. 619 OF 2010(O) ------------------------------------- OS.161/2009 OF MUNSIFF'S, PARAVOOR PETITIONERS: ---------------------- SARASWATHYAMMA,AGED 59 YEARS, D/O.PANKAJAKSHIAMMA, GS NIVAS, PARIPPALLY PO, PARIPPALLY VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.V.VENUGOPALAN NAIR RESPONDENT(S): ------------------------ 1. GOPALAKRISHNA PILLAI, JAGATHI VIHAR, MATTUKKADA, THAIKKADU PO,THIRUVANANTHAPURAM. 2. VIJAYAKRISHNA PILLAI, PUTHEN BUNGLOW, PARIPPALLY PO, PARIPPALLY VILLAGE, KOLLAM DISTRICT. 3. KUMARI RAJI, W/O.MADHUKUMARAN NAIR, CHATHANPARA,ALAMKODU PO,THIRUVANANTHAPURAM DISTRICT. 4. INDIRA AMMA, (2ND PLAINTIFF),D/O. PANKAJAKSHI AMMA, BALAKRISHNA MANDIRAM, KOONAIL CHERRY, PARAVOOR VILLAGE. 5. RUGMINI AMMA(3RD PLAINTIFF) D/O.PANKAJAKSHI AMMA,RUGMINI NIVAS, KALLUMKUNNU, KURUMANDAL CHERRY,PARAVOOR VILLAGE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.619 of 2010 ==================================== Dated this the 09th day of November, 2010 J U D G M E N T This petition is in challenge of Ext.P4, order refusing to raise a preliminary issue regarding the maintainability of the counter claim in a suit which was withdrawn by the petitioner. Petitioner and her sister filed O.S. No.185 of 2007 for demarcation of boundary of the property and other reliefs. Petitioner and her sister filed I.A. No.793 of 2009 to withdraw the suit with liberty to file fresh suit. In the meantime respondents filed written statement with a counter claim (in O.S. No.185 of 2007) on 21.07.2009. On 11.08.2009 application to withdraw the suit with liberty to file fresh suit was allowed and accordingly the suit was withdrawn. But counter claim proceeded and it was decided ex parte in the absence of petitioner and her sister. Petitioner has filed an application to set aside the decree on the counter claim and that application is pending, I am told. While so petitioner filed O.S. No.161 of 2009 for demarcation of boundary and for other reliefs. It is at that stage petitioner filed I.A. No.142 of 2010 in the O.P(C) No.619 of 2010 -: 2 :- counter claim in O.S. No.185 of 2010 to raise an issue regarding maintainability of the counter claim. According to the petitioner written statement and counter claim were filed after the prescribed time and without an application to receive the same. Hence the counter claim should not have been entertained. Learned Munsiff observed that withdrawal of suit will not in any affect the counter claim in view of the decision in Rethnakaran v. P.T.Thomas (1990 [2] KLJ 841) and Rule 6-D of Order VIII of the Code of Civil Procedure. It is contended by learned counsel that belated filing of written statement and the counter claim was not taken note of by the learned Munsiff. It is also submitted that O.S. No.161 of 2009 is posted for trial in the list on 15.11.2010. 2. So far as the maintainability of the counter claim for the reason of withdrawal of suit is concerned Learned Munsiff is justified in deciding it in favour of respondents in view of the decision and provision of law stated supra. If petitioner has a case that counter claim is not otherwise maintainable, that is a matter which learned Munsiff has to decide if the decree on counter claim is re-opened at the instance of petitioner. If the subject matter of the counter claim and O.S. No.161 of 2009 are one and O.P(C) No.619 of 2010 -: 3 :- same and a joint trial is requested, it is only appropriate that if counter claim is re-opened the same is heard along with O.S. No.161 of 2009 so far as law permits that. In view of that I am persuaded to think that it is necessary to adjourn trial of O.S. No.161 of 2009 until the application to set aside the decree in the counter claim is disposed of. Resultantly, this petition is disposed of directing learned Munsiff to postpone trial of O.S. No.161 of 2009 until the application to set aside decree in the counter claim in O.S. No.185 of 2007 is disposed and in case that decree is re-opened the learned Munsiff shall consider whether the counter claim in O.S. No.185 of 2007 is to be tried along with O.S. No.161 of 2009 and pass appropriate orders. Maintainability of the counter claim if challenged on any ground could be considered by the learned Munsiff in case the decree in the counter claim is set aside and is being tried as per law. THOMAS P. JOSEPH, JUDGE. vsv