Kerala High Court
Bijoy vs Gopinathan on 17 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
OP(C) NO. 1600 OF 2021
IN OS 121/2016 OF MUNSIFF COURT,VARKALA
PETITIONER:
BIJOY
AGED 40 YEARS
S/O.SAHADEVAN, KONCHIRAYIL HOUSE, AYIROOR, VARKALA,
THIRUVANANTHAPURAM 695 310
BY ADVS.
S.K.ADHITHYAN
KEERTHI S. JYOTHI
RESPONDENTS:
1 GOPINATHAN
AGED 83 YEARS
S/O.NARAYANANASARI, CHARUVILA VEEDU, PONGALAKONAM,
AYRIOOR DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
2 SATHYADEVAN
AGED 81 YEARS
S/O.NARAYANANASARI, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
3 THANKAPPAN
AGED 76 YEARS
S/O.NARAYANANASARI, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
4 NADARAJAN
AGED 73 YEARS
S/O.NARAYANANASARI, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
5 SUJATHA
AGED 65 YEARS
D/O.NARAYANANASARI, CHARUVILA VEEDU, PONGALAKONAM,
AYRIOOR DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
6 SUBHASHINI
AGED 79 YEARS
OP(C) NO.1600 OF 2021 2
W/O.SREENIVASAN, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695
310
7 SUDHARAMMA
AGED 62 YEARS
D/O.SUBHASHINI, CHARUVILA VEEDU, PONGALAKONAM,
AYRIOOR DESOM, VARKALA, THIRUVANANTHAPURAM 695
310
8 SUDHARMANI
AGED 54 YEARS
D/O.SUBHASHINI, CHARUVILA VEEDU, PONGALAKONAM,
AYRIOOR DESOM, VARKALA,
THIRUVANANTHAPURAM 695 310
9 SUJATHA
AGED 52 YEARS
D/O.SUBHASHINI, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695
310
10 SANTHA
AGED 64 YEARS
W/O.BALAKRISHNAN, CHARUVILA VEEDU,
PONGALAKONAM, AYIROOR DESOM, VARKALA,
THIRUVANANTHAPURAM 695 310
11 SREEJA
AGED 44 YEARS
D/O.SANTHA, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695
310
12 SREELAJA
AGED 42 YEARS
D/O.SANTHA, CHARUVILA VEEDU, PONGALAKONAM,
AYIROOR DESOM, VARKALA, THIRUVANANTHAPURAM 695
310
13 SAJEEV KUMAR
AGED 42 YEARS
S/O.BALAKRISHNAN, CHARUVILA VEEDU,
PONGALAKONAM, AYIROOR DESOM, VARKALA,
THIRUVANANTHAPURAM 695 310
14 JAYADAS
AGED 55 YEARS
OP(C) NO.1600 OF 2021 3
S/O.SATHYADEVAN, CHARUVILA VEEDU,
AYIROOR DESOM, VARKALA,
THIRUVANANTHAPURAM 695 310
15 JALAJA
AGED 52 YEARS
D/O.SATHYADEVAN, CHARUVILA VEEDU, AYIROOR
DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
16 JOY
AGED 50 YEARS
S/O.SATHYADEVAN, CHARUVILA VEEDU, AYIROOR
DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
17 ARYADEVI
AGED 65 YEARS
W/O.NATARAJAN, CHARUVILA VEEDU, AYIROOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
18 ARUN
AGED 40 YEARS
S/O.NATARAJAN, CHARUVILA VEEDU, AYIROOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
19 THARA
AGED 45 YEARS
D/O.SUJATHA, CHARUVILA VEEDU, AYIROOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
20 SHUBA
AGED 42 YEARS
D/O.SUJATHA, CHARUVILA VEEDU, AYIROOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
21 ALEX
AGED 36 YEARS
S/O.SASIDHARAN, LAL VILASOM, AYRIOOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
22 JAYAPRAKASH
AGED 54 YEARS
S/O.GOPINATHAN, CHARUVILA VEEDU, AYIROOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
23 MURALEEDHARAN
AGED 52 YEARS
S/O.VISHWANATHAN, SREECHITHRAM VEEDU, AYIROOR
OP(C) NO.1600 OF 2021 4
DESOM, VARKALA, THIRUVANANTHAPURAM 695 310
24 BABU
AGED 54 YEARS
S/O.SUKUMARAN, LAL VILASOM, AYIROOR DESOM,
VARKALA, THIRUVANANTHAPURAM 695 310
25 SAHADEVAN
AGED 70 YEARS
S/O.SANKU ASARI, KOCHINJACHAYIL VEEDU, VARKALA,
THIRUVANANTHAPURAM 695 310
26 SETHUKUTTI
AGED 70 YEARS
W/O.SAHADEVAN, KOCHINJACHAYIL VEEDU, VARKALA,
THIRUVANANTHAPURAM 695 310
27 BINOY
AGED 42 YEARS
S/O.SAHADEVAN, KOCHINJACHAYIL VEEDU, VARKALA,
THIRUVANANTHAPURAM 695 310
28 BIJI
AGED 37 YEARS
D/O.SAHADEVAN, KOCHINJACHAYIL VEEDU, VARKALA,
THIRUVANANTHAPURAM 695 310
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO.1600 OF 2021 5
''C.R."
Dated this the 17th day of June, 2022
JUDGMENT
Is it necessary that a counter-claim be
headed by a cause title is the short point that
arises for consideration in this original petition?
2. The petitioner's case in the original
petition is that he is the 8th defendant in O.S.
No.121/2016, on the file of the Court of the
Munsiff, Varkala. The respondents 1 to 20 are
the plaintiffs, and the respondents 21 to 28
are the defendants in the suit. The suit is filed
for a decree of permanent prohibitory
injunction to restrain the petitioner from
trespassing into the Mambazhamoola
Ganapathi Temple. The petitioner and the
other defendants have raised a counter-claim.
As per Exhibit P2 daily status report, the trial
court had partly decreed the suit and counter-
claim. The petitioner had applied for the
judgment and decree. Surprisingly, Exhibit
P3 notice was issued to the learned counsel
appearing for the petitioner, informing him that
the office was unable to prepare the judgment
and decree due to the absence of the cause title
in the counter-claim. Accordingly, the petitioner
had filed Exhibit P5 application to correct the
cause title in the counter-claim. The application
was opposed by the third respondent. The
court below did not pass any orders on the
application and has not issued the judgment and
decree. Aggrieved by the inordinate delay on the
part of the court below in issuing the certified
copy of the judgment and decree, this original
petition is filed.
3. Heard, Sri. S.K.Adhithyan, the learned
counsel appearing for the petitioner.
4.This Court had, by order dated 22.09.2021,
directed the Registry to call for a report from
the learned Munsiff to state why the judgment
and decree in the suit were not issued to the
petitioner.
5. The learned Munsiff has, by communication
dated 24.09.2021, informed this Court that the
judgment in the suit and the counter-claim was
pronounced on 05.04.2021. But when the file
was taken for preparing the cause title and
appendix of the judgment, it was found that the
counter-claim was not headed by a cause title.
Due to the absence of the cause title, it was not
possible for the office to prepare the judgment
and decree. In the above situation, Exhibit P3
notice was issued to the learned counsel
appearing for both sides. The judgment and
decree have, till date, not been issued to the
parties.
6. The petitioner and the other defendants in
the suit have raised a counter-claim along with
their written statement. Exhibit P2 status report
shows that the suit and the counter-claim were
partly decreed. The stand of the court below is
that the judgment and decree cannot be issued,
as the counter-claim is not headed by a cause
title.
7. Order VII Rule 1 of the Code of Civil
Procedure reads thus :
"1. Particulars to be contained in plaint - The
plaint shall contain the following particulars:-
(a) the name of the Court in which the suit is
brought;
(b) the name, description and place of residence
of the plaintiff;
(c) the name, description and place of
residence of the defendant, so far as they
can be ascertained;
(d) where the plaintiff or the defendant is a
minor or a person of unsound mind, a
statement to that effect;
(e) the facts constituting the cause of action and when
it arose;
(f) the facts showing that the court has jurisdiction;
(g)the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or
relinquished a portion of his claim, the amount so
allowed or relinquished; and
(i) a statement of the value of the subject-matter
of the suit for the purposes of jurisdiction and of
court-fees, so far as the case admits."
8. Order VIII Rule 6A of the Code of Civil
Procedure reads thus :-
"[6A. 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 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.
2 Such counter-claim shall have the
same effect as a cross- suit so as to enable the
Court to pronounce a final judgment in the same
suit, both on the original claim and on the
counter-claim.
3 The plaintiff shall be at liberty to file
a written statement in answer to the counter-
claim of the defendant within such period as
may be fixed by the Court.
4 The counter-claim shall be treated as
a plaint and governed by the rules applicable to
plaints.]"
9. It is also apposite to extract Rules 11 and 15
of the Civil Rules of Practice, Kerala.
"11. Cause title of plaint, etc.- A
plaint or original petition shall be headed
with a cause title as in Form No.1. The
cause title shall set out the name of the Court, and
the names of the parties, separately numbered,
and described as plaintiffs and defendants or
petitioners and respondents as the case may be.
15. Names, etc., of parties- The full name,
age, residence, address and description of
each party, and if such is the case, the fact that a
party sues or is sued in a representative
character, shall be set out at the beginning
of the plaint, original petition, or
memorandum of appeal as in Form No.5 but
need not be repeated in the subsequent
proceedings in the same suit, appeal or
matter. The description shall include the surname
father's, mother's, husband's or karanavan's name
as the case may be and such other particulars as
may be necessary to identify the person. This
applies also to parties subsequently added."
10. A reading of the above provisions,
namely, Order VII Rule 1 and Order VIII Rule
6A of the Code and Rules 11 and 15 of the
Civil Rules of Practice, explicitly show that only
a plaint or a n original petition t h a t needs
to be headed with a cause title as in Form
No.1, and the full name, age, residence and
address and description of each party needs to
be set out in the beginning of the plaint, original
petition or memorandum of appeal as in Form
No.5, and further that the above said details
need not be repeated in the subsequent
proceedings in the same suit, appeal or matter.
11. Undoubtedly, a counter claim is a subsequent
pleading as prescribed under Order VIII Rule 9 of the
Code of Civil Procedure. Therefore, there is no legal
stipulation that a counter-claim should be headed by a
cause title. The stand of the court below that the
judgment and decree in the suit and the counter-claim
will be issued only on the petitioner incorporating a
cause title is unwarranted. I hold that Exhibit P3
notice issued by the Court of the Munsiff,
Varkala is wrong and against the Code of Civil
Procedure and the Civil Rules of Practice,
Kerala.
In the result, in the exercise of the supervisory
powers of this Court under Article 227 of the
Constitution of India, I allow the original petition
by setting aside Exhibit P3 notice and direct the
court of the Munsiff, Varkala, to forthwith
release the judgment and decree in O.S
No.121/2016 to the petitioner, in accordance
with law.
Sd/-
C.S.DIAS,
JUDGE
rmm17/06/2022
APPENDIX OF OP(C) 1600/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT IN OP(C)
NO.320/2020 DATED 4/3/2020
Exhibit P2 TRUE COPY OF THE COMPUTER PRINTOUT OF
DETAILS OF OS NO.121/2016 BEFORE THE
MUNSIFF COURT, VARKALA DATED 5.4.2021
Exhibit P3 TRUE COPY OF THE NOTICE SERVED ON THE
PLAINTIFFS AND DEFENDANTS COUNSEL
DATED 19.4.2021
Exhibit P4 TRUE COPY OF THE COUNTERCLAIM FILED BY
THE DEFENDANTS IN OS.121/2016 BEFORE
MUNSIFF COURT, VARKALA
Exhibit P5 TRUE COPY OF THE IA NO.37/2021 IN OS
NO.121/2016
Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY
POWER OF ATTORNEY HOLDER OF THE 3RD
PLAINTIFF
Exhibit P7 TRUE COPY OF I.A. NO.42/2021 IN IA
NO.37/2021 IN OS 121/2016 BEFORE THE
MUNSIFF'S COURT, VARKALA.
Exhibit P8 TRUE COPY OF THE OBJECTION SUBMITTED
BY THE POWER OF ATTORNEY HOLDER OF THE
3RD PLAINTIFF IN IA NO.42/2021 IN OS
NO.121/2016 BEFORE MUNSIFF COURT,
VARKALA
