Kerala High Court
Shajahan vs Shajahan on 12 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942
OP(C).No.1366 OF 2019
IN I.A.NO.1722/2016 AND IN IA NO. 1225/2016 IN OS NO. 289/2014
DATED 23-02-2019 OF MUNSIFF'S COURT, PUNALUR
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PETITIONER/RESPONDENT/PLAINTIFF:
SHAJAHAN,
AGED 61 YEARS
S/O. NAGOOR MEERAN RAWTHER, T C 2/475,
THIRUVANANTHAPURAM , FROM, EDATHARA ATTUMPURA
THEKKETHIL PATHIRICKAL MURI, PATHANAPURAM VILLAGE,
KOLLAM DISTRICT.
BY ADVS.
SRI.PREMCHAND R.NAIR
SRI.GEORGE BRISTON
SRI.V.P.PRASANTH
SRI.R.SARACHANDRA KUMAR
SMT.K.SREEKALA DEVI
RESPONDENT/PETITIONER/DEFENDANT:
ALI HASSAN,
S/O. MUHAMMAD MUSTAFA RAWTHER, EDATHARA M M HOUSE,
PATHIRICKAL MURI,PATHANAPURAM VILLAGE, KOLLAM
DISTRICT, PIN 689 695.
R1 BY ADV. SRI.TPM.IBRAHIM KHAN (SR.)
R1 BY ADV. SMT.P.J.RAZIA BEEVI
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O. P. (C) No.1366 of 2019
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Dated this the 12th day of January, 2021
JUDGMENT
The petitioner as plaintiff filed OS 289/2014
before the Munsiff's Court, Punalur seeking
prohibitory injunction against trespass and for
mandatory injunction. The defendant-respondent
sought to raise a counter claim, seeking a relief
of fixation of boundary. IA 1722/2016 was filed by
the respondent-defendant for accepting the counter
claim. The plaintiff-petitioner filed IA 2225/2016
seeking to exclude the counter claim. As per the
order impugned the trial court accepted the counter
claim and dismissed the application filed by the
petitioner for exclusion of the counter claim. It
is challenging the said order that this original
O. P. (C) No.1366 of 2019
:- 2 :-
petition is filed.
2. The contention of the petitioner-plaintiff
is that the relief of fixation of boundary, as is
now attempted to be raised by way of counter claim,
is barred by res judicata in view of the earlier
litigations between the parties. As to whether the
relief sought for by the defendant in the counter
claim is barred under any of the provision of the
law is something to be urged by the petitioner-
plaintiff in the written statement to be filed to
the counter claim.
3. As noted by the trial court, the relief of
fixation of boundary is a recurrent cause of
action. The trial court noticed that the relief
sought in the counter claim existed even prior to
the filing of the written statement though the
O. P. (C) No.1366 of 2019
:- 3 :-
counter claim is sought to be raised subsequent to
filing of written statement.
4. The trial court was right in accepting the
counter claim and dismissing the prayer for
exclusion of the counter claim. The order impugned
suffers from no illegality.
The Original Petition fails and is accordingly
dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
OP(C).No.1366 OF 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT OS NO. 289 OF 2014
DATED 20-06-2014
EXHIBIT P2 TRUE COPY OF THE COUNTER CLAIM IN OS NO.
289 OF 2014 DATED 25-07-2016
EXHIBIT P3 TRUE COPY OF THE IA NO 2225 OF 2016 DATED
19-09-2016 WITH PRAYER TO EXCLUDE THE
COUNTER CLAIM.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 25-07-2009
OF 2003.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN AS NO. 120 OF
2009 DATED 21-12-2015 OF THE SUB COURT,
KOTTARAKARA
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 18-08-2016
IN RSA NO. 274 OF 2016
EXHIBIT P7 TRUE COPY OF THE COMMON ORDER DATED 23-02-
2019 IN IA NO. 1722 OF 2016 AND IA NO. 1225
OF 2016 IN OS NO. 289 OF 2014
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