Kerala High Court
T.S.Sumangala vs Varghese on 27 May, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16288 of 2010(O)
1. T.S.SUMANGALA, W/O.DEVADAS,
... Petitioner
Vs
1. VARGHESE, S/O.DEVASSY,
... Respondent
2. BABU, S/O.GOVINDAN,
3. CHANDRASEKHARAN PILLAI.B,
For Petitioner :SRI.P.B.KRISHNAN
For Respondent : No Appearance
Dated :27/05/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.16288 of 2010
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Dated this the 27th day of May, 2010
J U D G M E N T
Writ petitioner is the plaintiff in O.S. No.422 of 1999 of the court of learned Munsiff, North Paravur. In that suit he obtained an ex parte decree for recovery of possession of plaint B schedule in the year 2005. While so respondent No.1, assignee from the transferee of defendant Nos.1 and 2 filed application to set aside the ex parte decree and implead him in the suit. That application was allowed. Respondent No.1 filed written statement in the year 2005 contending that petitioner has no right, interest or possession over plaint B schedule, the suit property has been in possession and enjoyment of predecessor-in-interest of respondent Nos.2 and 3 since 30 years and that they have perfected title by adverse possession and limitation. Before passing ex parte decree on the application of petitioner, Advocate Commissioner along with a Surveyor inspected the property and submitted report and plan. Respondent No.1 after the case was re-opened and he was impleaded in the suit filed application to set aside that report and plan but learned Munsiff refused the prayer and dismissed the W.P(C) No.16288 of 2010 -: 2 :- application. Respondent No.1 challenged that order in this Court in W.P(C) No.26604 of 2006 but the challenge did not succeed. While disposing of the Writ Petition this Court observed that it was not necessary to set aside the report as respondent No.1 had not sought for any relief by way of a counter claim and hence identification of the property belonging to respondent No.1 for granting relief claimed by petitioner may not emerge for consideration by the court below in considering his application to identify his property. Obviously taking a cue from the said observation respondent No.1 filed application to amend the written statement to incorporate a counter claim for declaration of his title and for injunction against petitioner. He also filed application to issue a commission to report on certain matters not already reported by the Advocate Commissioner in Ext.P3. Applications for amendment of the written statement and for issue of commission were allowed by the court below as per Ext.P10 and P9, orders respectively. Those orders are under challenge in this Writ Petition. Learned Senior Advocate appearing for petitioner would contend that application to amend the written statement to incorporate counter claim is highly belated and lacked bona fides. It is also the contention that in the light of W.P(C) No.16288 of 2010 -: 3 :- Ext.P3, report already obtained in the suit it was not necessary to depute a Commissioner again for further report and if at all any further information was to be called for through the Commissioner, respondent No.1 could have done that in O.S. No.345 of 2004 preferred by him. It was not necessary to call for any additional information through the Commissioner in the present suit.
2. So far as the order allowing amendment of written statement to incorporate counter claim is concerned, there is no contention that the cause of action for the counter claim pleaded by respondent No.1 arose subsequent to the filing of the written statement or the time provided for delivery of written statement. If that be so it was possible to seek amendment of written statement to incorporate a counter claim and going by the decisions in Mahendra Kumar v. State of M.P. (AIR 1987 SC 1395) and Shanti Rani Das Dewanjee v.
Dinesh Chandra Day (AIR 1997 SC 3985) counter claim could be filed before evidence is completely closed and before the matter is reserved for judgment. Moreover, respondent No.1 has also filed a separate suit seeking declaration of title and W.P(C) No.16288 of 2010 -: 4 :- injunction with respect to the property he claimed to belong to him which according to him forms part of B schedule property in O.S. No.422 of 1999. In that situation there is no reason why this Court should interfere with Ext.P10, order allowing amendment of the written statement, in exercise of the power under Article 226 of the Constitution of India.
3. So far as Ext.P9, order allowing application for commission is concerned, after challenge of respondent No.1 to Ext.P3 was rejected he filed the application for amendment of written statement and incorporated the counter claim. This Court while disposing of Writ Petition No.26604 of 2006 observed that dismissal of the application to set aside Ext.P3, report cannot be interfered with since respondent No.1 has not made any counter claim or sought relief with respect to the property he claimed to be his and hence identification of the property belonging to him was not necessary. That is not the situation now. He has made a counter claim which the court below accepted and which I stated there is no reason to interfere with. In such a situation it was necessary to call for further report as to matters which are relevant for consideration of the counter claim. That is why court W.P(C) No.16288 of 2010 -: 5 :- below has allowed the application for appointment of commission as per Ext.P9. Having regard to the facts and circumstances stated I find little reason to interfere with that order also.
Writ Petition fails and it is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv