Suresh v. Yamuna Devi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** ## **OP(C).No. 2446 of 2016 (O)** **--------------------------(IA.NO.3016/15 IN OS.NO.592/2008 OF MUNSIFF COURT, KOTTARAKKARA) -----------------------** **PETITIONER : ----------------------** **SURESH, S/O.AMBROSE, IRATTAKKALAYIL VEEDU, MAVADI 711, POOVATTOOR PADINJARE MURI, KULAKKADA VILLAGE, KOTTARAKKARA TALUK, (PRESIDENT OF NSS KARAYOGAM, NO.656, MAVADY, KULAKKADA VILLAGE, KOTTARAKKARA).** **BY ADVS.SRI.SAJU.S.A SRI.ASHWIN SATHYANATH** **RESPONDENT : ------------------------** **YAMUNA DEVI, D/O.RADHAMMA, AGED 59 YEARS, SREE VINAYAKA HOUSE, KOTTA MURI P.O, KIDANGANNOOR, KOZHANCHERY TALUK, PIN-680 732.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(C).No. 2446 of 2016 (O)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------------------------** - **P1 TRUE COPY OF AMENDED PLAINT IN O.S.592/08 DATED NIL ON THE FILE OF MUNSIFF COURT, KOTTARAKKARA.** - **P2 TRUE COPY OF WRITTEN STATEMENT IN OS.592/08 DATED NIL ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA.** - **P3 TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED 16.12.2011 IN O.S.592/08 ON THE FILE OF MUNSIFF COURT, KOTTARAKKARA.** - **P4 TRUE COPY OF I.A.3016/15 IN O.S.NO.592/08 ON THE FILE OF MUNSIFF COURT, KOTTARAKKARA.** - **P5 TRUE COPY OF COUNTER OF I.A.3016/15 IN O.S.NO.592/08 ON THE FILE OF MUNSIFF COURT, KOTTARAKKARA. DATED 13/8/2015.** - **P6 TRUE COPY OF ORDER DATED 1.9.2016 IN I.A.3016/15 IN O.S.NO.592/08 ON THE FILE OF MUNSIFF COURT, KOTTARAKKARA.** ## **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** ## **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- ## **O.P.(C) No.2446 of 2016** ------------------------------------------------Dated this the 6[th ] day of October, 2016 ## **JUDGMENT** This petition is filed by the petitioner challenging Ext.P6 order in I.A.3016/2015 in O.S.592/2008 on the file of the Munsiff Court, Kottarakkara under Article 227 of the Constitution of India. 2. It is alleged in the petition that the respondent herein filed O.S.592/2008 on the file of the Munsiff Court, Kottarakkara for injunction simplicitor in respect of the plaint schedule property. The respondent filed Ext.P2 written statement denying the right of the plaintiff and possession over the property and also setting up right over the plaint schedule property in themselves. Thereafter the plaint was amended and the suit was converted to one for declaration of title over plaint schedule property and consequential injunction and for also mandatory injunction and amended plaint is produced as Ext.P1. The petitioners field Ext.P3 additional written statement on 16.12.2011. Ext.P4 is the application filed by the petitioner for amending the additional written statement incorporating the counter claim seeking a relief of declaration over counter claim property in favour of the counter claim first plaintiff and also for consequential injunction under Order 8 Rule 6A of the Code of Civil Procedure. This application was filed on 27[th] July, 2015. The respondent filed Ext.P5 petition to reject _**O.P.(C) No.2446 of 2016**_ 2 the prayer for counter claim and court below by Ext.P6 oder rejected the petition filed by the petitioner for amendment incorporating the counter claim which is being challenged by the petitioner for by filing this petition. 3. Heard Sri.Saju S.A., counsel appearing for the petitioner. 4. Since this court felt that there is no merit in this petition, it was disposed of on admission itself after hearing the counsel for the petitioner. 5. The counsel for the petitioner submitted that under Order 8 Rule 6A, the petitioner can file counter claim and there is no limitation provided and that will have to be filed in respect of cause of action arose before the defence is delivered by the petitioner in the suit. Further the counter claim arises on the basis of the amendment made to the plaint and as such it cannot be said that the right is barred as observed by the court below. 6. It is an admitted fact that the suit O.S.592/2008 was filed in the year 2008, originally for injunction simplicitor claiming that the plaintiff is the owner of the property and restraining the defendants from trespassing into the property. Even in the written statement, they have disputed the right of the plaintiff and also set up a right on the 'Karayogam' over the plaint schedule property and prayed for dismissal of the suit. The original written statement was filed on _**O.P.(C) No.2446 of 2016**_ 3 20.08.2009. Even at that time they have a case that the plaintiff has no right over the property and they wanted to set up a right over the plaint schedule property in their favour. It is true that the plaint was amended later evidenced by Ext.P1 amended plaint, whereby the suit was converted to one for declaration of title over the plaint schedule property and for consequential injunction both prohibitory and mandatory, this was done in the year 2011 and Ext.P3 additional written statement was filed on 17.12.2011, even at that time they will be getting a right to file a counter claim for seeking declaration of title and denying the title of the plaintiff, but such an attempt was not made by the defendants. But only in the year 2015, they filed an application for amendment of the additional written statement incorporating the counter claim in respect of the claim schedule property and also seeking a declaration over the counter claim property and for injunction in respect of the same against the counter claim defendants who are the plaintiffs in the suit as I.A.1316/2015. The plaintiff is opposed the counter claim and filed detailed counter seeking rejection of that application. ## 7. Order 8 Rule 6(A) to (G) reads as follows: ## _[_ _**6A. Counter-claim by defendant.-** (1)A defendant in a_ _suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any_ _**O.P.(C) No.2446 of 2016**_ 4 _right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:_ _Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court._ _(2) Such counter-claim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim._ _(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court._ _(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints._ _**6B. Counter-claim to be stated.** - Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, State specifically that he does so by way of counter-claim._ _**6C. Execution of counter-claim.** - Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit._ _**6D. Effect of discontinuance of suit.** - If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with._ _**6E. Default of plaintiff to reply to counter-claim.** - If the_ _**O.P.(C) No.2446 of 2016**_ 5 _plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit._ ## _**6F. Relief to defendant where counter-claim succeeds.**_ _Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance._ _**6G. Rules relating to written statement to apply.** The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]_ 8. It is true that if a cause of action has arisen for the defendant to set up counter claim in respect of the subject matter or different subject matter between the plaintiff and them, either before the filing of the suit or before delivering of the defense, the defendants can set up a counter claim. It is also settled law that it is not necessary that the counter claim must be raised in the written statement or additional written statement, but it can be filed separately also. It is true that there is no specific limitation provided in the provision as to when the counter claim can be filed. There is no dispute regarding the proposition laid down in the decision reported in _**Bollepanda P. Poonacha and Another v. K.M.Madapa**_ [(2008) 4 SCALE 140 = (2008)13 SCC 179] and _**Vidyadharan v. Thankamma**_ [(2012) 3 KLT 680] and _**Indira Bhai v. Madhusoodanan**_ [2015 (5) _**O.P.(C) No.2446 of 2016**_ 6 KHC 517] and _**Jawaharlal v. Manikantan and Others**_ [2013 KHC 148], the last decision is related to the right of the defendant to file a separate suit, if the counter claim was not entertained by the court. It is also fairly conceded by the counsel for the petitioner that after the filing of the additional written statement, additional issues have already been framed. 9. The Supreme Court in several decisions held that merely because there is no limitation provided for raising a counter claim that does not mean that they can raise counter claim at any time. If the issues have already been framed, then the right to file counter claim is barred is the dictum laid down in the decisions of the Supreme Court. In the decision reported in _**Rohit Singh and Others v. State of Bihar**_ [AIR 2007(SC) Page 10], it has been held that counter claim cannot be raised after framing issues. The same view has been reitarated in the decision reported in _**Bollepanda P. Poonacha and Another v. K.M.Madapa**_ [(2008) 4 SCALE 140 = (2008)13 SCC 179] also. 10. In the decision reported in _**Mahendra Kumar and Another v. State of Madhyapradesh and Others**_ (AIR 1987 SC 1395), the Supreme Court has held that “the next point that remains to be considered is whether Rule 6A of Order VIII of the Code of Civil Procedure bars the filing of a counter claim after the filing of a written 7 ## _**O.P.(C) No.2446 of 2016**_ statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of the counter claim by the defendant after he had filed written statement. What is laid down under Rule 6A (1) is that a counter claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. The High Court in our opinion has mis-read and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from Rule 6A (1) of the Code of Civil Procedure, as the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was therefore quiet maintainable. Under Article 113 of Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues has been provided for any suit for which no period of limitation is provided elsewhere in the schedule. It is not disputed that the counter claim which is treated as suit under Section 3 (2)(b) of Limitation Act had been filed by the appellants within three years from the date of accrual to them of the right to sue. So the learned District Judge and the High Court were wrong in dismissing the counter claim.“ _**O.P.(C) No.2446 of 2016**_ 8 It may mentioned here, it is clear from the above dictum that though a right to file counter claim can be maintained by a separate claim not raised along with the written statement, but it should be filed within the period of limitation provided for filing a suit after the cause of action to right to sue arises for the party, that is three years from the accrual of cause of action. In this case, the counter claim was raised by way of separate additional written statement after the original written statement was filed, but within three years from the date of accrual of cause of action. It is clear from the above dictums that leave to grant to raise counter claim on a later occasion is a discretionary relief to be granted by the court and if the court feels that it is likely to complicate the issues, then after the period of limitation is over and after the issues are framed, if a counter claim is filed at a belated stage then court has got the power to reject the counter claim. But that will not affect the right of the party to file a fresh suit on the same cause of action. In this case, admittedly the suit was filed in the year 2008, even at the time when the suit was filed, they have raised contention in the written statement that the plaintiff has no right in the property and setting up a right in the plaint schedule property in favour of the first defendant. So even at that time the cause of action has arisen for them to raise a counter claim which they could have raised, but they _**O.P.(C) No.2446 of 2016**_ 9 have not done when the written statement was filed in the year 2009 itself. Thereafter the plaint was amended in the year 2011 and additional written statement was filed by the defendant on 17.10.2011, even at that time they could have raised the counter claim which they have not done. So it is after the case was posted for trial, after framing additional issues that the present application for amending the written statement incorporating the counter claim has been filed by the petitioner, on 27.07.2015, nearly after three years and nine months of filing additional written statement. So it was rightly rejected by the court below in view of the dictum laid by the apex court on this aspect. There is no illegality or perversity committed by the court below warranting interference of this court to vary from the order passed invoking the supervisory jurisdiction under Article 227 of the Constitution of India. So the petition lacks merits and the same is hereby dismissed _in limine_ . Communicate this judgment to the court below at the earliest. ## _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss