Jayakumar v. K.K. Bahuleyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931** **WP(C).No. 18734 of 2008(E)** **-------------------------OS.833/1992 of PRL.M.C., KOTTAYAM** **PETITIONER(S)/PLAINTIFF:** **------------------------** **JAYAKUMAR, AGED 51, S/O.DAMODARAN, R/AT. RAHUL NIVAS, AMAYANNOOR KARA.** **BY ADV. SRI.LIJI.J.VADAKEDOM** **RESPONDENT(S)/DEFENDANT:** **------------------------** **K.K.BAHULEYAN, S/O.CHANDRASEKHARAN, VARAKUKALAYIL HOUSE, AMAYANNOOR, AYARKUNNAM, KOTTAYAM.** **ADV. SRI.A.K.HARIDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC.18734/08** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE PLAINT IN O.S.NO.833/92 BEFORE THE PRL.MUNSIFF'S COURT, KOTTAYAM.** **EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S.NO.833/92 BEFORE THE PRIL.MUNSIFF COURT, KOTTAYAM FILED BY THE RESPONDENT.** **EXT.P3: COPY OF THE JUDGMENT IN O.S.NO.833/92 BEFORE THE MUNSIFF'S COURT, KOTTAYAM.** **EXT.P4: COPY OF THE JUDGMENT DATED 19.11.2004 IN A.S.NO.274/98 BEFORE THE PRINCIPAL SUB COURT, KOTTAYAM.** **EXT.P5: COPY OF THE COUNTER CLAIM SUBMITTED BY THE RESPONDENT/DEFENDANT IN O.S.NO.833/92 BEFORE THE MUNSIFF'S COURT.** **EXT.P6: COPY OF THE PETITION TO RECEIVE THE COUNTER CLAIM FILED IN O.S.NO.833/92 BY THE RESPONDENT/DEFENDANT.** **EXT.P7: COPYOF THE PETITION IN I.A.NO.514/07 IN O.S.NO.833/92 OF PRL.MUNSIFF COURT, KOTTAYAM.** **EXT.P8: COPY OF THE PETITION FOR AMENDMENT OF COUNTER CLAIM.** **EXT.P9: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO AMEND P5 COUNTER CLAIM.** **EXT.P10: COPY OF THE ORDER DATED 17.11.2007 ALLOWING AMENDMENT OF COUNTER CLAIM IN O.S.NO.833/92 BEFORE MUNSIFF COURT, KOTTAYAM.** **EXT.P11: COPY OF THE ORDER DATED 17.11.2007 IN I.A.NO.428/07 IN O.S.NO.833/92 ALLOWING THE PETITION TO RECEIVE THE COUNTER CLAIM.** **EXT.P12: COPY OF THE ORDER DATED 20.2.2007 DISMISSING O.A.NO.514/07 IN O.S.NO.833/92 BEFORE THE MUNSIFF COURT, KOTTAYAM.** **/TRUE COPY/** **P.A. TO JUDGE** ## **S.S.SATHEESACHANDRAN, J. ------------------------------W.P.(C).NO.18734 OF 2008 () ----------------------------------Dated this the 19[th] day of February, 2010** ## **J U D G M E N T** Petitioner is the plaintiff in O.S.No.833 of 1992 on the file of the Principal Munsiff Court, Kottayam. The above suit is one for perpetual prohibitory injunction and the respondent is the defendant. Suit after trial was earlier decreed in favour of the plaintiff. On appeal preferred by the respondent/ defendant, setting aside the decree passed by the trial court, it was remitted for fresh disposal. Ext.P4 is the judgment dated 19[th] November, 2004 rendered by the appellate court remitting the case. After such remission, the respondent/defendant moved Ext.P5 application setting forth a counter claim for a declaration of his title and possession over the suit property, and in the alternative, for recovery of possession and also for injunction against the plaintiff. Ext.P6 application was also moved by the respondent for entertaining his counter claim. Plaintiff resisted that application filing Ext.P7 petition seeking rejection of the counter claim as not WPC.18734/08 2 entertainable. Among other contentions, the plaintiff also objected the entertainability of the counter claim contending that the defendant had not shown the cause of action for raising such claim in the present suit. The defendant thereupon filed Ext.P8 supported by an affidavit to amend his counter claim to incorporate a statement that the cause of action for counter claim had arisen on the date of institution of the suit and continuously thereafter. To Ext.P8 application, the plaintiff filed Ext.P9 objections. The court below allowed amendment of the counter claim vide Ext.P10 order. The counter claim was also ordered to be received vide Ext.P11 order. The application moved by the plaintiff for rejection of the counter claim was dismissed vide Ext.P12 order. Propriety and correctness of Exts.P11 and P12 orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel for the plaintiff contending that the counter claim canvassed by the defendant which had been allowed by the WPC.18734/08 3 court was barred as on the date of its presentation. Inviting my attention to Order VIII Rule 6 (A) of the Code of Civil Procedure, it is submitted that the declaration of title, recovery of possession on the basis of such title etc. claimed in the counter claim it should be based on a cause of action prior to filing of the written statement and that being so, it was clearly barred when the defendant set forth such a counter claim in 2007 after filing a written statement in the suit as early in 1995. Article 58 of the Limitation Act is also referred to by the learned counsel to contend that the entertainability of the counter claim by the court below under the impugned orders was patently erroneous. On the other hand, the learned counsel for the defendant contending that the factual foundation for presenting the counter claim had been stated in the previous written statement itself and it was only an omission in setting up the counter claim as and when the written statement was filed. The question of limitation in raising the counter claim as it depends on disputed question of fact, according to the counsel, has to be relegated for consideration in the trial of the suit and not to be WPC.18734/08 4 predetermined in examining the entertainability of the counter claim. Reliance is also placed in **Sabhari Syndicate v. The Catholic Syrian Bank Ltd. (2001 AIHC 1584)** to contend that even if a counter claim is found to be barred as on the date when it is set up, it can be entertained if factual foundation thereof had been made in the previous written statement filed in the suit. 3. It is highly regrettable to note that a suit instituted a decade above, that too, an injunction simplicitor still continues on the file of the court below awaiting final disposal as interlocked in proceedings relating to the entertainability of the counter claim canvassed by the defendant, that too, after a remand had been made by the appellate court setting aside the previous judgment. Before entertaining the counter claim, the trial court ought to have examined to the scope of remand as it is bound to confine further trial within the parameters laid down under the remand order in disposing of the suit. Perusing Ext.P4 judgment of the appellate court, it is seen, the previous judgment rendered by the trial court was set aside WPC.18734/08 5 for the reason that the report of the commissioner was found to be inadequate and insufficient in identifying the suit property. Evidently, the remand made was only to provide a fresh opportunity to identify the suit property and nothing else by deputing a fresh commission. The remand order specifically directed deputing a fresh commission. A fresh commission has been directed to demarcate the plaint schedule property based upon the title deeds. Identification of the suit property through a fresh commission for disposal of the suit in accordance with law was directed under the remand order. When that be so, that alone being the mandate of the remand order it was not open to the trial court to entertain any counter claim in that suit as it goes against the directions in Ext.P4 remand judgment. So much so, without going into the merits of the counter claim as to whether it is barred or not, I find the orders passed by the court below accepting the counter claim in the present suit has to be set aside, and I do so. Exts.P11 and P12 orders impugned in the writ petition are set aside. There will be a direction to the court below to dispose the suit as expeditiously as possible. WPC.18734/08 6 Exts.P5 and P6 applications shall stand dismissed. The writ petition is accordingly disposed of. **S.S.SATHEESACHANDRAN JUDGE** prp