Kerala High Court
John George vs Cheriyakunnil Koran on 8 June, 2009
Equivalent citations: AIR 2010 (NOC) 763 (KER.), 2010 AIHC (NOC) 907 (KER.)
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24570 of 2008(Y)
1. JOHN GEORGE,
... Petitioner
Vs
1. CHERIYAKUNNIL KORAN,
... Respondent
2. N.P. MOHAMMED KUNJI,
For Petitioner :SRI.N.D.JOY
For Respondent :SRI.P.BABU
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/06/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.24570 of 2008
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Dated: 8th June, 2009
JUDGMENT
A counter claim set up by the defendant in a suit for injunction long after the filing of the written statement was declined to be entertained by the learned Munsiff, Taliparamba for the reason it was not accompanied by any petition for acceptance. Propriety and correctness of that order is impeached by the defendant in the Writ Petition invoking the supervisory jurisdiction of this court vested under Article 227 of the Constitution of India.
2. Petitioner is the first defendant in O.S.No.215/07 on the file of the Munsiff Court, Taliparamba wherein he had filed the counter claim referred to earlier. The respondents in the petition are the plaintiff and the 2nd defendant in the suit. Admittedly, the suit was filed as early in June, 2007 and the petitioner/first defendant filed his written statement in August, 2007. The counter claim moved by him giving rise to this Writ Petition was presented before the court only on 4.6.08. True, the rejection of the counter claim by the learned Munsiff for the reason that a petition for leave to receive the counter claim was not filed is not appealing since it is only a curable irregularity, for which an opportunity could have been extended. However, after W.P.C.No.24570/08 - 2 - hearing the counsel for the petitioner at length and also the learned counsel for the respondents, I find, the rejection of the counter claim does not call for any interference by this court. Relying on Sugesan & Co. Pvt. Ltd. v. Hindustan Machine Tools Ltd. (AIR 2004 A.P.
428), learned counsel for the petitioner submitted that a counter claim has to be treated as a cross suit and it can be filed even after filing of the written statement in the suit. No doubt, a counter claim can be filed after filing of the written statement, but, subject to the interdiction placed under Order VIII Rule 6A C.P.C. Sub section (1) of Order VIII Rule 6A C.P.C. reads thus:
"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."W.P.C.No.24570/08 - 3 -
Entertainment of a counter claim even after filing of the written statement has to be examined with reference to the date of cause of action entitling the defendant to present such a claim in the suit instituted by another. The mandate under Order VIII Rule 6A C.P.C. makes it abundantly clear that a counter claim arising from a cause of action which had arisen before or after filing of the suit which continue to be in operation up to the date of filing of the written statement or extended date of filing of the written statement alone can be entertained after filing of the written statement by the defendant. In Mahendra Kumar v. State of M.P. [ (1987) 3 S.C.C. 265] it has been held thus:
".......R.6A(1) of O.VIII CPC 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 R.6-A(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 limit for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not."
Ext.P7B is the copy of the counter claim filed by the petitioner/1st W.P.C.No.24570/08 - 4 - defendant. Perusal of Ext.P7B shows that the cause of action for filing the counter claim arose long after the filing of the written statement, i.e., from 20.2.2008 onwards. When that be the case, it is evident, the cause of action arose after the defendant filed his written statement in the suit which cannot be entertained as a counter claim under Order VIII Rule 6A C.P.C. So, on merits itself, the counter claim presented by the petitioner-defendant was not entertainable as its reception is interdicted by law. Further more, any subsequent pleading by the defendant in the suit after the filing of the written statement could have been made only after obtaining the leave from the court as mandated under Order VIII Rule 9 C.P.C. That was also not complied with. It was also pointed out by the learned counsel appearing for the second defendant that the relief claimed in the counter claim is mainly against that defendant, a co-defendant in the suit, but, not against the plaintiff. That also is a circumstance showing that the counter claim is meritless and not entertainable. Rejection of the counter claim by the learned Munsiff, in the facts and circumstances involved, does not call for any interference. The Writ Petition is devoid of any merit and it is dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE
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