C.V.Giri vs Bhargavi
2021 Latest Caselaw 23252 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
   THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                        OP(C) NO. 198 OF 2020
   AGAINST THE ORDER IN I.A. NO.599/2019 IN OS 209/2010 OF MUNSIFF
                           COURT,ATTINGAL
PETITIONERS/COUNTER PETITIONERS/DEFENDANTS 1,3 AND 4:

     1     C.V.GIRI,AGED 50 YEARS
           S/O.CHELLAPPAN, K.C.MANDIRAM, TOLMUKKU, EDAKKODU,
           THIRUVANANTHAPURAM - 695 101.
     2     DESMAN,AGED 40 YEARS
           S/O.VISWAMBHARAN, VADAKKUMMURI VEEDU, PUTHIYAKAVU,
           KILIMANOOR, THIRUVANANTHAPURAM - 695 101.
     3     SUNDERASAN,AGED 71 YEARS
           S/O.VASUDEVAN, KARITHALAKKAL VEEDU, KARICHIYIL,
           AVANAVANCHERY, THIRUVANANTHAPURAM - 695 101.
           BY ADV LIJU. M.P


RESPONDENTS/PETITIONERS/PLAINTIFFS 1, 4 TO 7:

     1     BHARGAVI, D/O.JANAKI, AGED 88, KARAKATTUVILA VEEDU,
           PARUTHIYIL, EDAKKODU, THIRUVANANTHAPURAM - 695 101.
     2     SARANGADHARAN,S/O.VELAYUDHAN, AGED 76, NISHI BHAVAN,
           TOLMUKKUM, THIRUVANANTHAPURAM - 695 101.
     3     SUMATHI,D/O.VELAYUDHAN, AGED 74, KADAYIL VEEDU, EDAKKODU,
           THIRUVANANTHAPURAM - 695 101.
     4     SYAMALA,W/O.GANGADHARAN, AGED 69, CHIRAYIL VEEDU,
           THETTIKUZHI, EDAKKODU, THIRUVANANTHAPURAM - 695 101.
     5     SATHYAN,S/O.SREEDHARAN, AGED 42, KOCHUKADA VEEDU,
           TOLMUKKU, EDAKKODU, THIRUVANANTHAPURAM - 695 101.
           BY ADV SRI.R.S.KALKURA


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 198 OF 2020
                              2

                    JUDGMENT

Dated this the 25th Day of November, 2021

The petitioners are the defendants/counter claimants in

O.S.No.209 of 2010 on the files of the Munsiff's Court,

Attingal. The suit is with respect to the strip of land

described as 'B' schedule in the plaint and lying in between

the properties of the plaintiffs and the defendants. The

plaintiffs claim exclusive right over 'B' schedule contending

that B schedule way forms part of their property and no one

else has the right to use 'B' schedule. The defendants filed

written statement, contending that 'B' schedule is part of a

common way formed by surrender of land by the plaintiffs

and neighbouring property owners.

2. After filing of written statement, the plaint was

amended. Thereupon, defendants filed additional written

statement and raised a counter claim. The relief sought in

the counter claim is to declare 'B' schedule, (A schedule in OP(C) NO. 198 OF 2020

the counter claim) to be a public way and to injunct the

plaintiffs from obstructing the free movement of the

defendants through the way. They raised objection against

the counter claim and sought to exclude the counter claim

from the additional written statement. By Ext.P4 order, trial

court allowed the application and excluded the counter claim,

permitting the defendants to file independent suit in respect

of the claim.

3. Sri. Liju M.P., learned Counsel for the petitioner

contended that the trial court committed a material

irregularity in having excluded the counter claim. It is

submitted that all throughout the petitioners had contended

that 'B' schedule way was created by the surrender of

properties by the plaintiffs, defendants and nearby property

owners and hence, the way is a public way. It is submitted

that cause of action for the counter claim arose on

15.12.2018, when the petitioners were obstructed from using OP(C) NO. 198 OF 2020

the 'B' schedule way. Assailing the finding in the impugned

order that the counter claim raised without resorting to the

procedure prescribed under Section 91 (b) and Order 1 Rule

8 of CPC cannot be entertained, it contended that even

though 'B' schedule is stated to be a public way, its user is

limited to the persons residing in the vicinity and therefore, it

does not fall within the meaning of public way in the larger

sense. Finally it is contended that, rather than compelling

the petitioners to file a separate suit, the trial court ought to

have considered the counter claim on merits, since the very

object of the provision is to ensure that all disputes are

brought within the purview of one suit, so as to reduce

multiplicity of litigationS.

4. Sri. R.S. Kalkura, learned Counsel for the

respondents put forth the following contentions:

(i) Going by the relief sought in the counter claim,

petitioners are alleging public nuisance against the OP(C) NO. 198 OF 2020

respondents for having obstructed a public way. As such, it

is imperative to follow the procedure prescribed under

Section 91(b) and Order 1 Rule 8 of CPC.

(ii) Even otherwise, the counter claim should have been

raised before framing of issues, whereas, in the case at hand,

the counter claim was raised much after the issues were

framed.

5. The suit is for a perpetual injunction, founded on

the plaintiffs' claim of exclusive possession over 'B' schedule.

The defence contention is that 'B' schedule is a public way

and they also have the right to use the way. In such

circumstances, the outcome of the suit will decide the nature

and character of 'B' schedule way.

6. In support of the contention that the counter claim

cannot be raised after framing of issues, learned Counsel

placed reliance of the decision of the Hon'ble Supreme Court

in [2019 (5) KHC 735], Ashok Kumar Kalra V. Wing Cdr OP(C) NO. 198 OF 2020

Surendra Agnihotri and others.

7. In reply, learned Counsel for the petitioners

submitted that in the instant case, the claim was amended

and additional written statement filed after framing of issues.

As such, the court will have to frame additional issues and

hence the dictum laid down by the Hon'ble Supreme Court in

Ashok Kumar Kalra (supra) will not apply.

8. Having heard the learned Counsel and having

perused the impugned order, I find no reason to interfere

with the order, in exercise of the supervisory power under

Article 227 of the Constitution. I cannot accept the

contention that the term 'public pathway' should be

understood in a limited sense, so that the procedure

prescribed under Section 91(1) (b) of the CPC need not be

followed. In the written statement and the additional written

statement, the specific case of the petitioners is that 'B'

schedule is a public way formed by surrender of lands by the OP(C) NO. 198 OF 2020

neibhbouring property holders. Being so, obstruction of

movement through 'B' schedule will necessarily amount to

public nuisance. The trial court has correctly held that, even

though a counter claim can be filed even after filing written

statement, the claim should be based on a cause of action

that had arisen prior to the filing of the written statement.

In the case at hand, the cause of action alleged in the counter

claim arose on 15.12.2018, whereas the written statement

was filed way back on 08.11.2010. As rightly pointed out by

the learned Counsel for the respondents, the lie and nature

of B schedule being the subject matter of the suit, there is no

necessity to raise a counter claim for declaring 'B' schedule

as a public way.

For the aforementioned reasons, the Original Petition is

dismissed.

Sd/-

V.G.ARUN JUDGE RK OP(C) NO. 198 OF 2020

APPENDIX OF OP(C) 198/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.209/2010 ON THE FILE OF MUNSIFF'S COURT, ATTINGAL. EXHIBIT P2 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT AND COUNTER CLAIM IN OS NO.209/2010 ON THE FILE OF MUNSIFF'S COURT, ATTINGAL.

EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA NO.599/2019 IN O.S.NO.209/2010 ON THE FILE OF MUNSIFF'S COURT, ATTINGAL. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18/07/19 PASSED IN I.A.NO.599/2019 IN OS NO.209/2010 ON THE FILE OF MUNSIFF'S COURT,ATTINGAL.