Vidyadaran v. Thankamma @ Unniyammal and Jayan

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 8TH DAY OF MARCH 2011/17TH PHALGHUNA ## OP(C).No. 951 of 2011 (O) ------------------------I.A.NO.4250/2010 IN OS.179/2010 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA ## PETITIONER(S)/PETITIONER: -------------------------------------- VIDYADHARAN, S/O.ANKAPPAN, BHATTHIRI ALUKKAL HOUSE, KODAKARA VILLAGE AND DESOM MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENT(S)/DEFENDANTS: ------------------------------------------ 1. THANKAMMA @ UNNIYAMMAL, W/O.KARAPPILLY SANKARAN, KOODAPUZHA DESOM EAST CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. 2. JAYAN, S/O.THANKAMMA KOODAPUZHA DESOM EAST CHALAKUDY VILLAGE MUKUNDAPURAM TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-03-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C) NO.951/11 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PLAINT IN O.S.NO.179/2010. EXT.P2: COPY OF THE ORIGINAL WRITTEN STATEMENT. EXT.P3: COPY OF THE PETITION I.A.NO.4250/2010 FOR AMEDNING THE PLEADINGS. EXT.P4: COPY OF THE OBJECTIONS TO I.A.NO.4250/2010 BY THE PLAINTIFF. EXT.P5: COPY OF THE ORDER DATED 21/2/2010 IN I.A.NO.4250/2010. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN, J.** -----------------------------------O.P.(C).No.951 of 2011 ------------------------------------Dated this the 8[th] day of March, 2011 ## **JUDGMENT** The petitioner herein filed O.S.No.179 of 2010 on the file of the court of the Munsiff of Irinjalakuda for fixation of boundary of the plaint schedule property. The defendants filed a written statement on 9.6.2010. Thereafter, the defendants filed I.A.No.4250 of 2010 to amend the written statement and to incorporate a counter claim. The court below allowed the application by Exhibit P5 order dated 21[st] December 2010, which is under challenge in this Original Petition. 2. The learned counsel for the petitioner submitted that the court below was not justified in allowing the amendment. The defendant did not file the counter claim on the date of filing of the written statement. Therefore, the defendants are precluded from filing a counter claim later. It is pointed out that the cause of O.P.(C) No.951/2011 2 action for the counter claim arose on 10.5.2010. 3. Sub Rule (1) of Rule 6A of Order VIII of the Code of Civil Procedure 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 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." 4. The requirement of Sub Rule (1) of Rule 6A of Order O.P.(C) No.951/2011 3 VIII C.P.C. is that the counter claim must relate to a cause of action accrued to the defendant against the plaintiff before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The cause of action for the counter claim could be one which arose either before or after the filing of the suit. A cause of action which has arisen after the filing of the written statement or after the time limited for delivering the defence has expired, cannot be the basis for filing a counter claim. On the other hand, if the cause of action for the counter claim arose before the date of filing of the written statement or before the time limited for delivering the defence has expired, such a counter claim could be entertained even after filing the written statement. The date of filing of the written statement or the expiry of the time limited for filing of the written statement has relevance only to the cause of action for the counter claim and it has no relevance for filing the counter claim. Counter claim could be preferred even later by way of amendment of written statement. The only restriction is that such counter claim must relate to a cause of O.P.(C) No.951/2011 4 action which accrued before the filing of the written statement or before the time limited for delivering the defence has expired. ## 5. In **Mahendra Kumar vs. State of Madhya Pradesh and others (AIR 1987 SC 1395)** , the Supreme Court held thus : "The next point that remains to be considered is whether Rule 6A(1) of Order VIII, Civil P.C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it ; bar the filing of a counter claim by the defendant after he had filed the 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 misread 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 O.P.(C) No.951/2011 5 counter claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1), Civil P.C. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable." 6. The decision in Mahendrakumar's case was relied on in **Smt.Shanti Rani Das Dewanjee vs. Dinesh Chandra Day : AIR 1997 SC 3985** , **Bollepanda P.Poonacha and another vs. K.M. Madapa : AIR 2008 SC 2003** and **Ramesh Chand Ardawatiya vs.** . **Anil Panjwani : AIR 2003 SC 2508** 7. The learned counsel for the petitioner relied on the decision of the High Court in **Kerala Nadvathur Mujahideen vs. Hussain Madvoor (2007(1) KLT 92)** and referred to paragraph 10 thereof. **n** The petitioner also relied on the decision in **John George vs. Kora (2009(3) KLT 148)** . On a careful reading of the aforesaid decisions of the Kerala High Court, I do not think that those decisions would support the contention put forward by the petitioner. O.P.(C) No.951/2011 6 8. Section 3(2)(b) of the Limitation Act states that for the purpose of the Act, any claim by way of a set off or counter claim shall be treated as a separate suit and shall be deemed to have been instituted - (i) in the case of a set off, on the same date as the suit in which the set off is pleaded ; (ii) in the case of a counter claim, on the date on which the counter claim is made in court. In so far as the counter claim is concerned, the period of limitation for filing the same is to be reckoned with reference to the date on which the counter claim is made. A combined consideration of Section 3(2) (b) of the Limitation Act and Rule 6A of Order VIII of C.P.C. would make the position abundantly clear that even though the counter claim was not presented along with written statement, it could be presented even later, provided the period of limitation for filing the same has not expired and the cause of action accrued before the defendant has delivered his defence or before the time limited for delivering his defence has expired. O.P.(C) No.951/2011 7 9. The court below rightly allowed the application for amendment of the written statement. No grounds are made out for interference under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. **K.T.SANKARAN JUDGE** csl