IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).No. 206 of 2010(O) ------------------------ AGAINST THE ORDER IN IA 1759/2010 IN OS.17/2008 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER ------------------------------ SREENIVASAN PILLAI, AGED 70 YEARS, S/O.PARTHASARADHI PILLAI, KULASEKHARA MADATHIL, CACHERRY WARD, KOLLAM WEST VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN SRI.JAMES JOSE RESPONDENT(S): --------------- 1. G.GOPALAKRISHNA PRABHU, S/O.LATE GANGADHARAN PRABHU, DWADESHI MADAM, DWADESHI NAGAR, THEVALLY WARD, KOLLAM DISTRICT, PIN-691 009. 2. S.GEETHA, D/O.LATE GANGADHARAN PRABHU, OF DO. ADV. SRI.R.SATISH KUMAR FOR R1 & R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.206/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PLAINT IN OS 17/2008 OF SUB COURT, KOLLAM (TRUE COPY) EXT.P2 WRITTEN STATEMENT AND COUNTER CLAIM IN OS 17/2008 OF SUB COURT, KOLLAM (TRUE COPY) EXT.P3 JUDGMENT IN OS 17/2008 OF SUB COURT, KOLLAM (TRUE COPY) EXT.P4 IA NO.1759/2020 IN OS 17/2008 OF SUB COURT, KOLLAM SEEKING DIRECTION TO POST THE COUNTER CLAIM (TRUE COPY) EXT.P5 ORDER ON IA 1759/2010 IN OS 17/2008 OF SUB COURT, KOLLAM (TRUE COPY) //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.206 of 2010 -------------------------------------- Dated this the 16th day of November, 2010. JUDGMENT Defendant in O.S.No.17 of 2008 of the court of learned Principal Sub Judge, Kollam is the petitioner before me. Respondents sued petitioner for a declaration of title by adverse possession and other reliefs. Petitioner/defendant filed written statement and made a counter claim to declare his title over the suit property and allow him to recover possession of the said property and building thereon with mesne profits. On 20.11.2009 learned Sub Judge framed issues and posted the case on 18.12.2009 for payment of balance court fee by the petitioner and respondents. On 18.12.2009, it is seen from the copy of B diary, learned Sub Judge observed that petitioner and respondents remitted balance court fee. The case was taken up on 08.02.2010. That day, respondents/plaintiffs were absent and there was no representation for them. Petitioner was represented by counsel. The suit was dismissed (Ext.P3 is the copy of judgment). There was no mention in the judgment about the counter claim. On 02.06.2010 petitioner filed Ext.P4, I.A.No.1759 of 2010 supported by an affidavit stating that though the suit was dismissed for default on 08.02.2010 the counter claim had not been disposed of and hence counter claim may be posted for evidence. On that application learned Sub Judge passed Ext.P5, order on 17.06.2010 in the following lines: OP(C) No.206/2010 2 “Since the balance court fee was not remitted and defendant was absent, the counter claim was dismissed. Now this petition was filed without any basis. So it is only to be dismissed. Hence dismissed”. That order is under challenge in this petition. Learned counsel for petitioner submitted that no order was passed on the counter claim when the suit was dismissed on 08.02.2010 as seen from the copy of B diary and thereafter there was no posting for the counter claim. Nor was the counter claim disposed of as stated in Ext.P5, order. It is the submission of learned counsel that entire court fee payable on the counter claim was paid even at the time of filing the counter claim. I have heard learned counsel for respondents. 2. In the light of the submission of learned counsel for petitioner as above stated, I called for the entire records of the case from the court of learned Sub Judge and a copy of the B diary. It is seen from the copy of B diary that the case was taken up on 08.02.2010 when on account of absence of respondents the suit was dismissed. That entry in the B diary states that counsel for petitioner was present but does not say anything about the counter claim. I went through the records and found that on the counter claim or anywhere else no order was passed disposing of the counter claim for whatever OP(C) No.206/2010 3 reason thereof on any day. I also found that the entire court fee payable on counter claim was paid at the time of filing the counter claim. As seen from the B diary learned Sub Judge has recorded on 18.12.2009 that petitioner remitted balance court fee (which itself is not correct as the entire court fee was remitted on the date of filing the counter claim). In view of the above, on 29.10.2010 I directed the Registry to get the order sheet in O.S.No.17 of 2008 from the court below with its readable copy and a report from the learned Principal Sub Judge as to when he had disposed of the counter claim together with a copy of order disposing of the counter claim. In answer to that, learned Sub Judge has sent a letter dated 03.11.2010 where it is stated that the suit was dismissed for default on 08.02.2010 but since the counsel who appeared for petitioner did not (on 08.02.2010) bring to the notice of learned Sub Judge pendency of counter claim, no order was passed on it (obviously on 08.02.2010) and thus the counter claim was omitted to be disposed of. Learned Sub Judge also states that it was an inadvertent mistake happened due to the pressure of work. 3. May be, it was not brought to the notice of the learned Sub Judge on 08.02.2010 that the counter claim is pending and hence he omitted to pass an order on it. But when Ext.P4, application requesting the learned Sub Judge to post the counter claim for enquiry was brought to him how did, and how could, he pass an order (on 17.06.2010) that since the balance court fee was not paid and petitioner was absent the counter claim was dismissed and that Ext.P4, application was filed without any basis? Did not the Sub Judge verify the records when Ext.P4, application was brought to him and OP(C) No.206/2010 4 he passed Ext.P5, order (referred supra)? Neither the order sheet nor Ext.P4, application show that the said application was posted for hearing. Surely, had the Sub Judge heard counsel for petitioner, the counsel would have pointed out that the counter claim had not been disposed of. Reason persuades me to think that the Sub Judge passed orders on Ext.P4, application without verifying the records. And, how could the Sub Judge dispose of Ext.P4, application without posting it for hearing. Ext.P5, order being based on a non-existant order needs only to be set aside. This petition is allowed. Ext.P5, order is set aside. Ext.P4, application is remitted to the learned Sub Judge. He shall post the counter claim for enquiry and pass appropriate orders on it. Petitioner shall appear in the trial court on 08.12.2010. Registry shall send the records of the case to the court below forthwith. THOMAS P.JOSEPH, Judge. cks