Allowed

Christudas v. Karunakaran Nadar

Kerala HC8 Nov 2012OP(C)/3707/2012

Case brief

AI extract

What is this about?

Petition challenging the Additional Munsiff's rejection of a counter-claim as belated in a suit for permanent prohibitory injunction. The High Court found the counter-claim was raised within the timeframe under Section 6-A of Order VIII CPC and directed the lower court to decide the merits.

What did the court decide?

Impugned order rejecting counter-claim set aside; I.A. No. 2654/2011 allowed for trial of counter-claim on merits.

Christudas Vs Karunakaran Nadar — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934

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OP(C).No. 3707 of 2012 (O)

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IA.NO.2654/2011 IN OS.124/2010 of ADDL. MUNSIFF COURT, NEYYATTINKARA

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PETITIONER(S):

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CHRISTUDAS, S/O.THANKAYYAN NADAR, AGED 42 YEARS KARAKKATTU ROADARIKATHU PUTHAN VEEDU MAMPAZHAKARA DESOM PERUMPAZHUTHOOR REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HIS WIFE KAMALAMMA.

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BY ADVS.SRI.R.S.KALKURA SMT.R.BINDU SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH

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RESPONDENT(S):

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KARUNAKARAN NADAR, S/O.NARAYANAN NADAR, AGED 79 YEARS KUZHIVILA THEKKE PUTHAN VEEDU PERUMKADAVILA DESOM PERUMKADAVILA VILLAGE THIRUVANANTHAPURAM-695124.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C) NO. 3707/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT-P1 - TRUE COPY OF THE PLAINT IN O.S.124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTINKARA

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EXHIBIT-P2 - THE TRUE COPY OF THE WRITTEN STATEMENT DATED 30-8-2010 FILED BY THE THIRD DEFENDANT IN OS.124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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EXHIBIT-P3 - TRUE COPY OF THE COUNTER CLAIM FILED BY THE PETITIONER DATED 20-6-2011 IN OS.124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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EXHIBIT-P4 - TRUE COPY OF THE IA.2654 OF 2011 DATED 20-6-2011 IN OS. 124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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EXHIBIT-P5 - TRUE COPY OF THE COMMISSION APPLICATION DATED 20-6-2011 TRUE COPY OF THE IA.2654 OF 2011 DATED 20-6-2011 IN OS.124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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EXHIBIT-P6 - TRUE COPY OF THE APPLICATION FOR AMENDMENT DATED 19-9-2011 FILED BY THE RESPONDENT PRAYING FOR AMENDING THE PLAINT IN O.S. 124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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EXHIBIT-P7 - TRUE COPY OF THE OBJECTION DATED 10-10-2011 FILED BY THE PETITIONER TO EXHIBIT P6

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EXHIBIT-P8 - TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONER DATED 17-7-2012 IN OS.124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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EXHIBIT-P9 - TRUE COPY OF THE ORDER DATED 6-8-2012 IN IA.2654 OF 2011 IN OS.124 OF 2010 ON THE FILE OF THE MUNSIFFS COURT, NEYYATTNKARA.

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RESPONDENTS' EXHIBITS : NIL

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/TRUE COPY/

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P.A. TO JUDGE.

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V. CHITAMBARESH, J

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OP(C) NO. 3707 OF 2012

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Dated this the 8^th day of November, 2012

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JUDGMENT

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I heard Mr. R.S. Kalkura, Advocate on behalf of the petitioner and Mr. K.K. Satheesh, Advocate who had lodged a caveat on behalf of the respondent.

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The suit for a decree of permanent prohibitory injunction against trespass was filed on 03.02.2010. The defendant/petitioner filed his written statement in time on 30.08.2010. The plaintiff/respondent thereafter filed an application for amendment of the plaint on 19.09.2011. An additional prayer for fixation and putting up of boundaries was sought by way of amendment of the plaint.

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The plaint was permitted to be amended and an additional written statement was therefore filed on 17.07.2012. The defendant had in the meanwhile raised a counter claim on 20.06.2011 alleging attempted trespass by the plaintiff on 06.06.2011 and 14.06.2011. A decree of injunction against committing waste in the plaint schedule property was sought by the defendant in the counter claim.

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OP(C) No. 3707/2012

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The court below has by the order impugned rejected the counter claim as belated. A reference to order VIII Rule 6-A (1) of the Code of Civil Procedure is apposite.

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“ 6-A. 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 according 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 counterclaim is in the nature of a claim for damages or not:

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Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.”

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An additional written statement was necessitated only because the plaint was permitted to be amended. The additional written statement is certainly a part of the defence delivered by the defendant under Order VIII Rule 6 A of the Code of Civil Procedure. The counter claim was raised well before the additional written statement was filed. The counter claim refers to the cause of action having arisen before the additional written statement was filed. Therefore the counter claim raised by the

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OP(C) No. 3707/2012

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defendant cannot said to be belated as found by the court below.

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The impugned order is set aside and I.A. No. 2654/2011 in O.S. No. 124/2010 on the file of the court of the Additional Munsiff of Neyyattinkara is allowed. The question whether the relief claimed in the counter claim could be granted or not is a matter to be considered by the court below at the time of trial.

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The Original Petition is disposed of. No costs.

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V. CHITAMBARESH JUDGE

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ncd

Christudas v. Karunakaran Nadar

Case brief

What is this about?

What did the court decide?

Christudas v. Karunakaran Nadar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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