Mr R Kumar Vs Mr M J Thomas

ALL ARE R/AT. NO 12 FLAT NO.303, MAITHRI OPULENCE 6TH CROSS, GARAKAMANTHANAPALYA BYRASANDRA DAKHALE, K.R. PURA HOBLI BANGALORE EAST TALUK BANGALORE- 573201, K.A STATE.

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…PETITIONERS

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(BY SRI. K. MANOHARACHARI, ADV.,)

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AND:

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MR. M.J. THOMAS S/O LATE MATHAI JOSEPH

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HC-KAR

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AGED ABOUT 70 YEARS.

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MRS. MARIYAMMA THOMAS W/O M.J. THOMAS AGED ABOUT 69 YEARS.

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BOTH ARE RESIDING AT NO.46 FLAT NO.10, THE GARDENS DUBAI, UAE REP. BY THROUGH G.P.A HOLDER MRS. SARAMMA MATHEW S/O MATHEW KZACHARAIAH AGED ABOUT 50 YEARS R/A NO.244, F3, 8TH MAIN ROAD LAKE VIEW APARTMENTS, NTI LAYOUT VIDYARANYAPURA, BANGALORE-97.

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MRS. SHANTHA W/O LATE RAMAIAH AGED ABOUT 60 YEARS.

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MR. PRAKASH S/O LATE RAMAIAH AGED ABOUT 50 YEARS.

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MRS. SHYLAJA D/O LATE RAMAIAH AGED ABOUT 40 YEARS.

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MRS. GAYATHRI D/O LATE RAMAIAH AGED ABOUT 38 YEARS.

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R3 TO R6 ARE R/AT NO.12 FLAT NO.303, MAITHRI OPULENCE 6TH CROSS, GARAKAMANTHANAPALYA BYRASANDRA DAKHALE K.R. PURA HOBLI BANGALORE EAST TALUK BANGALORE- 573201, K.A STATE.

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HC-KAR

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MR. M. MUNIYAPPA S/O LATE MUNIYAPPA AGED ABOUT 63 YEARS.

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MRS. LAKSHMI DEVI W/O M. MUNIYAPPA AGED ABOUT 58 YEARS.

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MRS. MANJULA D/O MUNIYAPPA AGED ABOUT 44 YEARS.

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MR. RAGHU S/O MUNIYAPPA AGED ABOUT 34 YEARS.

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MRS. DAKSHYANI @ HEMA D/O MUNIYAPPA AGED ABOUT 40 YEARS.

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R7 TO R11 ARE R/AT. NO.1 1ST CROSS ROAD, MARUTHINAGAR MALLESHPALYA, NEW THIPPASANDRA POST BANGALORE-560 075.

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MRS. V. MANJULA W/O MUNIKRISHNAPPA AGED ABOUT 44 YEARS.

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MR. JAGADISH S/O MUNIKRISHNAPPA AGED ABOUT 38 YEARS.

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MS. NETHRAVATHI D/O MUNIKRISHNAPPA AGED ABOUT 35 YEARS.

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MR. GURURAJ S/O MUNIKRISHNAPPA AGED ABOUT 34 YEARS.

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NC: 2025:KHC:34362 W.P. No.23346/2025

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HC-KAR

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MS. SOUMYA D/O MUNIKRISHNAPPA AGED ABOUT 31 YEARS.

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MR. M. VIJAY S/O MUNIKRISHNAPPA AGED ABOUT 29 YEARS.

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R12 TO R17 ARE R/AT. FLAT NO 303, THIRD FLOOR MAITHRI OPULENCE, NO 12 6TH CROSS, GARAKAMANTHANAPALYA BYRASANDRA DAKHALE, K.R. PURA HOBLI BANGALORE EAST TALUK BANGALORE- 573201, K.A. STATE.

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…RESPONDENTS

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(BY SRI. SRINIVASA D.C. ADV., FOR R9)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.07.2025 PASSED BY CITY CIVIL AND SESSIONS JUDE BANGALORE (CCH-45) IN IA NO. 13 ORDER 8 RULE 6(A) TO (G) R/W 151 CPC SEEKING PERMISSION TO FILE W. S BY WAY OF COUNTER CLAIM ON BEHALF OF DEFENDANTS NO. 2 TO 5 IN OS NO. 7107/2015 THE COPY OF ORDER IS PRODUCED AT ANNEXURE-A. BY CALL FOR THE RECORDS IN OS NO. 7107/2015 WHICH IS PENDING DISPOSAL BEFORE PRL. CITY CIVIL AND SESSIONS JUDGE BANGALORE (CCH-45) & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioners are before this Court calling in question an order dated 11.07.2025 passed by the XLIV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.7107/2015 rejecting an application under Order VIII Rule 6(A) to (G) of the Civil Procedure Code (CPC) in I.A.No.13 seeking permission to file a counter claim.

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2. Heard Sri.K.Manoharachar, learned counsel for

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the petitioners and Sri.Srinivasa D.C., learned counsel for the respondent No.9.

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3. Facts in brief germane are as follows:

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The respondent Nos.1 & 2 - plaintiffs institutes a suit in O.S.No.7107/2015 seeking declaration and delivery of suit schedule property against the defendants. The defendant No.9 enters appearance on 04.10.2016 and files his written statement. Petitioners - defendant Nos.2 to 5 had been placed ex parte . As the learned counsel for the

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HC-KAR

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petitioners submits that no notice was ever served upon them, they come to know of the pending suit only when the Commissioner comes to visit the property for measurements. It is then the petitioners filed application before the concerned Court seeking permission to file written statement. The permission so sought in I.A.No.11 is allowed on its merits permitting written statement to be filed by these petitioners - defendant Nos.2 to 5. Later the defendant No.2 files written statement along with an application seeking permission for filing of a counter claim, the said application comes to be rejected. The rejection of which has driven the petitioners - defendant Nos.2 to 5 before this Court in the subject petition.

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The learned counsel appearing for the petitioners, taking this Court through the documents appended to the petition, would seek to contend that throughout the proceedings no notice was ever served upon these petitioners. It is only when the Court Commissioner comes to visit the property on an order

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HC-KAR

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passed by the concerned Court, the petitioners come to know of the subsistence of the suit in O.S.No.7107/2015. It is then the petitioners filed application I.A.No.11 seeking to file their written statement on the score that they were never served with the notice. The concerned Court accepts the application and allows the same, but the concerned Court rejects another application seeking filing of a counter claim.

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The learned counsel appearing for the respondent No.9 seeks to place reliance upon two judgments of the Apex Court rendered in the case of Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri and others¹ and in the case of Mahesh Govindji Trivedi vs. Bakul Maganlal Vyas² to buttress his submission that the counter claim ought to have been filed along with the written statement. A separate application being filed will incur delay. The suit is of the year 2015 and the counter

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1 (2020) 2 SCC 394

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2 LAWS (SC)-2022-10-24

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HC-KAR

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claim is sought to be filed in the year 2024, therefore, there is delay of nine (09) years. He would contend that the order of the concerned Court does not warrant any interference.

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I have given my anxious considerations to the

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submissions made by the respective learned counsel and I

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have perused the material on record.

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The afore-narrated facts, link in the chain of

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events are all a matter of record, they would not require any iteration. The issue that falls for consideration at this juncture is whether delay has taken away the right of the petitioners to file a counter claim. The petitioners - defendant Nos.2 to 5 were not served with notice. This is an admitted fact as the concerned Court itself allows an application in I.A.No.11 permitting these defendant Nos.2 to 5 to file their written statement on the ground that no notice was served to them. This application is allowed on 21.08.2024. If the petitioners had registered the counter

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HC-KAR

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claim along with the written statement, it would have been appropriate. But the petitioners did not do so. They chose to file another application seeking permission to register a counter claim. That comes to be rejected on the ground that there has been delay of nine (09) years in filing the counter claim. If written statement itself is permitted on 21.08.2024, it is un-understandable as to how the concerned Court would reject the counter claim, which is a right of the defendants in a suit, that too on the ground of delay. The order of the concerned Court is, on the face of it, erroneous. In that light, the petition deserves to succeed. Accordingly, the following:

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ORDER

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i. Writ petition is allowed.

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ii. The order dated 11.07.2025 passed by the XLIV Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.7107/2015 rejecting an application under Order VIII

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HC-KAR

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Rule 6(A) to (G) of the (CPC) in I.A.No.13

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is quashed.

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iii. The application so filed before the concerned Court in I.A.No.13 stands allowed. The counter claim, so filed, shall be accepted by the Court of XLIV Additional City Civil and Sessions Judge, Bengaluru.

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iv. The concerned Court shall now regulate its procedure and take the suit to its logical conclusion. Ordered accordingly.

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Sd/(M.NAGAPRASANNA) JUDGE

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BSR

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List No.: 2 Sl No.: 34

Mr R Kumar v. Mr M J Thomas

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Mr R Kumar v. Mr M J Thomas

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