IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 29694 of 2008(I) --------------------------------------- OS.1430/2007 of PRL.MUNSIFF COURT, TRIVANDRUM .................... PETITIONER(S): -------------------------- 1. MARY VARGHESE, W/O.LATE K. VARGHESE, KOMBASSERIL HOUSE, MAVELIKKARA-690101. 2. PHILIP K.VARGHESE, S/O.LATE K. VARGHESE, KOMBASSERIL HOUSE, MAVELIKKARA-690101. 3. ANU KOSHY, W/O.LATE KOSHY VARGHESE, KOMBASSERIL HOUSE, MAVELIKKARA-690101. BY ADVS.MR.V.M.KURIAN MR.MATHEW B. KURIAN MR.K.T.THOMAS MR.ISAC T.PAUL RESPONDENT(S): -------------------------- SIVASANKARAN NAIR, S/O.GOPALA PILLAI, 'SIVANS', PONGUMOOD, THIRUVANANTHAPURAM 695 011. BY ADVS.MR.P.SREEKUMAR FOR R1 MR .K.S.MANU (PUNUKKONNOOR) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON 02/07/2009 DELIVERED THE FOLLOWING: W.P.(C) NO. 29694/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.165/06 FILED BEFORE THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. P2:- COPY OF THE AMENDMENT APPLICATION FILED BY THE PETITIONER IN OS. NO.165/06 BEFORE THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE PLAINT IN OS. 1430/07 FILED BY THE PETITIONER BEFORE THE IST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. P4:- COPY OF THE ORDER DT. 24.1.08 ISSUED BY THE DISTRICT COURT, THIRUVANANTHAPURAM. P5:- COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM FILED BY THE PETITIONERS IN OS. NO.1430/07. P6:- COPY OF THE ORDER DT. 14.8.08 PASSED BY THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. P7:- COPY OF THE ORDER DT. 30.6.08 IN IA. NO.1860/08 IN CMA. 20/06 OF DISTRICT COURT, THIRUVANANTHAPURAM. TRUE COPY P.A. TO JUDGE TSS S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.29694 OF 2008 (I) ----------------------------------- Dated this the 2nd day of July, 2009 J U D G M E N T The short question arising for consideration in the writ petition is can the court exclude a counter claim raised by the defendant in his written statement without an application being filed for such exclusion, satisfying the requirements under Order VIII Rule 6 (c) of the CPC, by the plaintiff in the suit ? 2. The petitioners are the defendants in O.S.No.1430/2007 and the respondent, the plaintiff in that suit. Suit was one for partition. Ext.P3 is the copy of the plaint in that suit. Admittedly, in respect of portions of the subject matter covered by the above suit, the defendants had instituted two suits, one against the Corporation for a decree of injunction and another against the present plaintiff and some others for recovery of possession and permanent WPC.29694/08 2 prohibitory injunction. A copy of the plaint in the latter suit filed against the respondent/plaintiff and others in O.S.No.1430/2007 is produced as Ext.P1. The petitioners and the respondent, after having purchased undivided shares over portions of a small piece of land comprising a building, claimed specific portions over the plot, and that inevitably gave rise to conflicts and disputes resulting in multifarious litigations between them. Advertance to the claim set up by the respective parties to sustain the reliefs claimed in their suits or the defenses made, as the case may be, is found not necessary to resolve the question arising for consideration in this writ petition, and so, I refrain from doing so. Suffice to state, that the petitioners/defendants in O.S.No.1430/2007 after getting the order declaring them ex parte in the suit set aside filed a written statement raising a counter claim of mandatory injunction and also putting up of boundary in the property scheduled in their written statement. While the defendants remained ex parte on an application moved by the plaintiff/respondent under Section 24 of CPC before the District Court, an order was passed directing joint trial of the WPC.29694/08 3 three suits, one filed by the respondent as plaintiff (O.S.No.1430/2007) and the other two by the petitioners/ defendants (O.S.No.165/2006 and O.S.No.483/2006), which have been referred to above. The two suits O.S.No.1430/2007 and O.S.No.483/2006 pending on the file of the I Additional Munsiff's Court, Thiruvananthapuram and II Additional Munisff's Court, Thiruvananthapuram respectively were ordered to be withdrawn and transferred to the Principal Munsiff's Court, Thiruvananthapuram for joint trial with O.S.No.165/2006 pending before that court. Such order for withdrawal and transfer was admittedly with notice to both parties, and after hearing them. A time limit of six months was also fixed by the learned District Judge for disposal of the suits. Pursuant thereto, the defendants appeared in the present suit, got the ex parte order against them set aside and filed the written statement setting forth a counter claim for the reliefs aforementioned. 3. From the submissions made at the time of hearing and also from the facts and circumstances presented, I find WPC.29694/08 4 that both parties claim right over portions of a piece of land purchasing undivided shares from the owners of that land. A suit for partition in accordance with the rights obtained by the parties under the deeds executed in their favour is pending adjudication. Pursuant to the sale deeds obtained by them, both parties got specific allotment and possession, over which, there is interference and meddling by other sides is the case advanced for claiming injunction, fixation of boundary etc. Having regard to the fact that both parties are co-owners to the property having purchased undivided shares, the mere fact that they obtained possession over some specific portions will not be sufficient to get a prohibitory/mandatory order of injunction against the other co-owner, and whatever equities to be worked out between the parties on the basis of their possession has to be worked out after determination of their specific rights and at the time of division of the properties by metes and bounds. The learned Munsiff has found that the counter claim raised in the written statement by the petitioners/defendants is a relief already claimed in the earlier suit O.S.No.165/2006 instituted by them as plaintiffs against WPC.29694/08 5 the respondent and some others/the defendants in that suit. That also persuaded the learned Munsiff with the direction issued by the learned District Judge for a speedy disposal of the suits within a time limit, to pass the impugned order (Ext.P6) holding that the counter claim raised by the petitioners/defendants in their written statement has to be excluded for consideration in a separate suit, if so desired by the defendants. 4. The challenge mooted against Ext.P6 order by the petitioners/defendants is that no application had been moved by the plaintiff for exclusion of the counter claim and without complying with the procedural mandate under Order VIII Rule 6-C CPC no order of exclusion of the counter claim under that rule is permissible. Relying on M/s.Polyplast Industries v. K.K.Sukumara Pillai 1988 (2) KLJ 887), the learned counsel for the petitioners contended that only if an application is moved by the plaintiff for exclusion of the counter claim and that too before the issues in relation to the counter claim are settled, then, only after considering the WPC.29694/08 6 merit of that application with reference to the disputed facts arising for adjudication in the suit, the court is competent to pass orders, if it thinks so fit for excluding the counter claim from the purview of the suit. On the other hand, the learned counsel appearing for the respondent contended that in the facts and circumstances involved in the case disclosing that the petitioners/defendants had already filed a suit to claim the reliefs set forth in the counter claim as against the plaintiff and some others, entertaining of the counter claim in the present suit and settling of issues thereof with the steps to be followed thereof will inevitably lead to prolongation of the litigation beyond the period fixed by the learned District Judge while ordering the joint trial of that suit with two more suits in respect of the very same subject matter. The learned counsel further submitted that the present suit being one for partition, whatever equities to be worked out as against the co-owners can be determined in the present suit itself and a separate claim by the defendants who could claim only the status of a co-owner by virtue of the sale deeds obtained by him over undivided shares in the property, entertaining of the counter WPC.29694/08 7 claim for the reliefs claimed thereunder will be nothing but an exercise in futility. 5. Having heard the counsel of both sides at length and considering the facts and circumstances presented, I find that the challenge pressed into service against Ext.P6 order of the learned Munsiff must fail. A defendant setting up a counter claim in a suit, subject to the satisfaction of Order VIII Rule 6- A and 6-B of CPC, needless to point out, in respect of that claim raised is in the position of a plaintiff. When such a claim is raised in a suit filed by another, Order VIII Rule 6-C of CPC enables the master of that suit, the plaintiff, if he has justifiable cause thereof, to contend that the claim raised by the defendant ought not to be disposed by way of a counter claim but in an independent suit. Any such contention has to be raised by the plaintiff before issues are settled in relation to that counter claim. Further, such contention can be raised only by way of an application. The right so conferred to the plaintiff to seek for exclusion of the counter claim as covered by Order VIII Rule 6-C of CPC, subject to the satisfaction of WPC.29694/08 8 the conditions thereunder, cannot in any way whittle down the powers of the court to pass appropriate orders on the entertainability of the counter claim in the suit. Even without an application from the plaintiff for exclusion of the counter claim, the court is fully competent and empowered to pass an order whether the claim raised by the defendant is to be entertained as a counter claim or to be excluded directing him to agitate his claim by way of an independent suit. If that be not so, the failure of the plaintiff to move an application under Order VIII Rule 6-C of CPC to exclude a counter claim within the time stipulated may lead to undesirable situations compelling the court to adjudicate claims raised by the defendant which could not be entertained as counter claim under Order VIII Rule 6-A and 6-B of CPC. The restriction imposed under Order VIII Rule 6-C of CPC for seeking exclusion of counter claim is only on the plaintiff and not on the court. The power of the court under Order VI Rule 16 of CPC to strike out pleading at any stage of the proceedings extends even in the case of a counter claim raised by a defendant in a written statement. The court can WPC.29694/08 9 suo motu strike out or amend the pleading exercising its power under Order VI Rule 16 of CPC in such manner, cannot be doubted for a moment. Such striking out or amending the pleading by the court arises when any matter in the pleading is found unnecessary, scandalous, frivolous or vexatious or it may tend to prejudice, embarrass or delay the fair trial of the suit, or is otherwise an abuse of the process of the Court. In such situations, no written application from any of the parties to the suit is required. Similarly, excluding the counter claim raised in the written statement of the defendants, if so found by the court, can be ordered without the same being asked for by the plaintiff. It is fallacious to contend that the court can order exclusion of a counter claim only if it is sought for by the plaintiff by a written application and that too complying with the procedural mandate and within the time stipulated under that rule. 6. The facts presented in the case would show that the petitioners/defendants, who raised the counter claim in their written statement had already sought the relief thereunder in WPC.29694/08 10 a separate suit instituted against the plaintiff, which is also now ordered to be disposed with the present suit by a joint trial. When that be the case, raising of the counter claim by the defendant in his written statement cannot be treated as bona fide, and at any rate, that circumstance lend credence and force to the submission of the learned counsel for the respondent that the counter claim raised is intended to scuttle the time limit fixed by the learned District Judge for disposal of all the three suits by a joint trial. Even if the counter claim raised does not strictly fall within the relief claimed in the earlier suit filed by the defendant, which is ordered to be tried jointly with the present suit, on the facts presented, I find the learned Munsiff was fully justified in ordering the exclusion of the counter claim. The decision relied by the petitioners M/s.Polyplast Industries v. K.K.Sukumara Pillai 1988 (2) KLJ 887) has to be understood with reference to the right of the plaintiff to seek for exclusion of a counter claim under Order VIII Rule 6-C of CPC and not as laying down a settled proposition that the court trying the suit is incompetent to exclude a counter claim even if it is so WPC.29694/08 11 satisfied of the need of such exclusion, whatever be the reason for such satisfaction, for excluding the counter claim and directing the defendant to agitate his claim in an independent suit. But where the court suo motu proceeds to consider the question whether the counter claim raised by the defendant is liable to be excluded, which no doubt can be considered at any stage of the suit, the defendant who raised the counter claim and the plaintiff in the suit must be extended an opportunity of being heard and, then, it has to pass appropriate orders over the matter. That alone can be the restriction in the power of the court to exclude a counter claim raised in a written statement filed by the defendants, and nothing more. The writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp WPC.29694/08 12 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009