IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 12840 of 2010(O) -------------------------- OS.913/2008 of MUSIFF COURT-II(A), KOZHIKODE .................... PETITIONER(S)/PLAINTIFF :- ----------------------------------------- THUVVASSERY SABEESH,AGED 43 YEARS, S/O.DAMODARAN,PRANAVAM HOUSE,BEYPORE AMSOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN SRI.K.K.KRISHNA KUMAR RESPONDENT(S)/DEFENDANT :- -------------------------------------------- THULASI (PVT.) MINI SUDHA JALA VITHARAN COMMITTEE, REP.BY SECRETARY N.GANESHAN, S/O.GANGADHARAN, AGED 47 YEARS, NELLIKKOTTU HOUSE, BEYPORE AMSOM, KOZHIKODE TALUK. ADV. SRI.S.K.KRISHNAKUMAR SRI.SAJAN ANTONY SRI.S.K.PREMJITH MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 12840 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.No.913/2008 of the Munsiff Court, Kozhikode. Ext.P2 :- Copy of the written statement filed by the defendant in O.S.913/2008. Ext.P3 :- Copy of the additional written statement filed by the defendant in O.S.913/2008. Ext.P4 :- Copy of the I.A.No.3457/09 in O.S.913/2008. Ext.P5 :- Copy of detailed objection to Ext.P4 petition. Ext.P6 :- Copy of the order in I.A.No.3457/2009 in O.S.913/2008 dated 11.1.2010. Ex.tP7 :- Copy of order of the learned Munsiff allowing I.A.No.3457/2009 in O.S.No.913/2008 dated 22.1.2010. Respondent's Exhibits :- NIL //True Copy// P.A. To Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ W.P.(C) No.12840 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 21st day of June 2010 J U D G M E N T This writ petition is filed by plaintiff in O.S.No.913 of 2008 of the Court of learned Munsiff-II(A), Kozhikode. 2. Petitioner filed a suit for declaration and injunction on 7.2.2009. Respondent filed written statement resisting the suit. Later, respondent filed Ext.P3, additional written statement-cum-counter claim under Order 8 rule 6 (A) of the code of civil procedure (for short, 'the code'). To receive the subsequent pleading the respondent filed Ext.P4, application. That application was opposed by petitioner. Learned Munsiff as per Ext.P6, order has allowed the application. That order is under challenge. Learned counsel for petitioner contends that after filing the written statement, respondent could not have preferred a W.P.(C) No.12840 of 2010 : 2 : counter claim in the form of additional written statement. Respondent could only have sought amendment of the written statement already filed. It is also contended that ground stated for filing additional written statement is not sufficient. Yet another contention is that court below has not considered the question whether cause of action urged in the counter claim is barred by limitation. Learned counsel for respondent placing reliance on the decision in Kerala Noduvathur Mujahideen v. Hussain Madavoor And Another (2006 (3) KLJ 631) has contended that even by way of additional written statement it is open to the respondent to raise a counter claim. 3. It is seen from Ext.P3, counter claim submitted along with the additional written statement that according to the respondent, cause of action for the counter claim arose on 14.12.2008. It is not disputed that respondent filed written statement on 7.2.2009. In other words as per Ext.P3, counter claim cause of action for that counter has W.P.(C) No.12840 of 2010 : 3 : arisen on 14.12.2008 which is before filing of the written statement. Requirement of Order 8 rule 6(A) of the code is only that the cause of action must have arisen before filing the written statement or before the time fixed for delivery of written statement has expired. Decisions on the point say that the counter claim can be made at any time before judgment is pronounced provided its cause of action has arisen either before written statement is filed or before the time provided for delivery of written statement has expired. Hence, there is no merit in the contention that counter claim could not have been made after written statement was filed. 4. Equally unsustainable is the contention that by way of separate pleadings counter claim could not have been made. Order 8 rule 6(A) of the code does not prescribe any such limitation. This Court in the decision cited Supra has held that a defendant may make the counter claim along with written statement or, by way of W.P.(C) No.12840 of 2010 : 4 : additional pleading as provided under Order 8 rule 9 of the code which of course require permission of the Court. That requirement is satisfied by the respondent by filing Ext.P4, application for permission to file subsequent pleading which contained counter claim. 5. Then the next question is whether the court below should have allowed Ext.P4, application. In the affidavit in support of that application it is stated that due to a “typographical omission” respondent was not able to incorporate counter claim in the original written statement. It is not disputed before me that counter claim was raised and Ext.P4 application was filed even before issues were settled. There is no reason why I should think that statement in the affidavit in support of Ext.P4, application is not corrent. Learned Munsiff has referred to these aspects and allowed respondent to raise the counter claim. I find, no reason to interfere with the order allowing Ext.P4, application. W.P.(C) No.12840 of 2010 : 5 : 6. So far as the contention of petitioner that cause of action pleaded in counter claim has become barred by limitation as on the date of filing the counter claim is concerned, I make it clear that it will be open to the petitioner to raise such a contention in the re-application he has to file in answer to the counter claim. With the above direction, the writ petition is dismissed. THOMAS P. JOSEPH, JUDGE. Jvt