Kerala High Court
Binu A.P vs Valsala B. Menon on 25 September, 2024
1
OPC 1276/2022
2024:KER:74280
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
OP(C) NO. 1276 OF 2022
I.A.4/2021 IN OS NO.636 OF 2015 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM
ARISING OUT OF THE JUDGMENT IN OS NO.636 OF 2015 OF PRINCIPAL MUNSIFF
COURT, ERNAKULAM
PETITIONER/S:
1 BINU A.P.,AGED 50 YEARS
S/O. LATE PRABHAKARAN, ARAKKAL HOUSE, LITTLE FLOWER CHURCH
ROAD, ELAMKULAM VILLAGE, KALOOR. P.O., ERNAKULAM, PIN -
682017
2 SMT. SAROJINI. A.P.,AGED 73 YEARS
W/O. LATE LATE PRABHAKARAN, ARAKKAL HOUSE, LITTLE FLOWER
CHURCH ROAD, ELAMKULAM VILLAGE, KALOOR. P.O., ERNAKULAM, PIN
- 682017
3 BABY,AGED 82 YEARS
W/O. BALAKRISHNAN ONIYATH HOUSE, EROOR WEST P.O.
TRIPUNITHURA, PIN - 682301
4 SHINI,AGED 45 YEARS, W/O.RAJESH PUTHENPURAKKAL HOUSE
KEDAMANGALAM, NORTH PARAVUR, ERNAKULAM DISTRICT, PIN -
683513
5 LINI,AGED 44 YEARS
W/O. SANTOSH PADUVATHIL HOUSE, THOTTAKKATTUKARA ALUVA,
ERNAKULAM DISTRICT, PIN - 683108
BY ADVS.M.S.UNNIKRISHNAN
K.SUNIL, ALEENA MARIA JOSE
M.ARDRA KRISHNAN
KRISHNENDU.D
RESPONDENT/S:
1 VALSALA B. MENON,AGED 79 YEARS
W/O. K. BHASKARA MENON, ARAKKAL HOUSE, NNRA -112, ELAMKULAM
2
OPC 1276/2022
2024:KER:74280
VILLAGE, LFC RAOD, KALOOR. P.O., ERNAKULAM, PIN - 682018
2 CORPORATION OF KOCHI, PARK AVENUE, ERNAKULAM REPRESENTED BY
ITS SECRETARY., PIN - 682011
BY ADVS.
MOHAMED AYUB N.M
K.JANARDHANA SHENOY
ARUN ANTONY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.7.22, THE COURT
TODAY DELIVERED THE FOLLOWING:
3
OPC 1276/2022
2024:KER:74280
JUDGMENT
(Dated this the 25th September 2024)
The defendant Nos. and 2 in O.S.No.636 of 2015 on the
files of Munsiff Court, Ernakulam, along with 3 others, are the
petitioners, and the 1st respondent was the plaintiff. The said
O.S. was filed by the 1st respondent for a decree of permanent
prohibitory injunction restraining the 1st and 2nd defendants, their
men or agents from constructing a compound wall or making any
manner of construction or any other act encroaching to any
portion of the plaint B schedule road or to reduce its width or
causing any interference or obstruction to the plaintiff's
uninterrupted or plaint B schedule road including vehicular
access for ingress and egress of plaint A schedule property.
2. A written statement was filed by defendants Nos.1 and 2
denying the averments in the plaint on 22.6.2016. A
Commission application was filed by the plaintiff along with the
2024:KER:74280
suit and the Commission has filed Ext.Ext.P3 report. After
entering appearance, the defendants filed I.A.No.5585 of 2019
under Order 26 Rule 9 and 10 CPC for appointment of an
Advocate Commissioner with the assistance of a Village
Officer. While so, the plaintiff filed I.A. No.1 of 2021 to appoint
an Advocate Commissioner to prepare a survey sketch of plaint
B schedule road as reported by the Advocate Commissioner on
the date of the suit with the assistance of the Taluk Surveyor or
private surveyor. At this point in time, the defendants submitted
that they are not pressing I.A.No.5585 of 2019, and it was
dismissed as not pressed. The defendants filed a work memo in
the application filed by the plaintiff as I.A. No.1 of 2021. The
learned Munsiff, as per the order dated 5.2.2021, dismissed
I.A.No.1 of 2021 and the work memo to note additional
points. The defendants, thereafter, filed I.A. No.4 of 2021 an
application under Order 6 Rule 17 CPC to amend the written
2024:KER:74280
statement and to incorporate a counter claim. The plaintiff filed
an objection to the amendment application as Ext.P10. The
learned Munsiff, after hearing both sides, passed Ext.P11 order
dismissing the petition for amendment. The petitioners, who are
the defendants, challenge Ext.P11 order in this Original Petition
under Article 227 of the constitution of India.
3. Heard the counsel for the petitioners as well as the
respondents.
4. The suit is filed by the plaintiff for a permanent
prohibitory injunction restraining defendant Nos.1 and 2 from
constructing a compound wall or making any construction
encroaching into the property. In written statement, the
defendants have taken up a contention that a compound wall
existed on the southern side of the southern compound, which
was demolished on 22.5.2015 by the plaintiff and her men. It is
also contended that the pathway, which lies on the southern side
2024:KER:74280
of their property in an east-west direction, is of the character of
a public road, and the corporation of Cochin concreted it. The
controversy occurred regarding the width of the pathway on the
immediate southern side of the defendants's property.
5. In the ex-parte commission report and the rough sketch,
it is seen that the width of the property on the southern side of
the property varies from 2.50 meters, and further west, the same
is 2.40 meters towards a scheduled property. In order to identify
B schedule property with the help of a surveyor, the defendant
filed I.A. No.5585 of 2019 to inspect and report the property of
the defendants as per their sale deed and also the width of the
pathway situated beyond the southern boundary of the property
up to the northern boundary of Iqbal and Nandanan. In the
affidavit in support of the petition, in paragraph No.4, it is
specifically averred that the defendant is constrained to approach
the court with the petition as the plaintiff did not take steps to
2024:KER:74280
measure and identify the pathway. It was also averred in the
petition that if the plaintiff expresses willingness to apply for a
survey commission, he will withdraw the said petition. The
plaintiff thereafter filed I.A.No.1 of 2021 for the appointment of
a commissioner and Taluk surveyor to prepare a survey sketch
of plaint B schedule property. When this application was filed,
as averred in the affidavit by the defendant in I.A.No.5585 of
2019, the defendant submitted that he was not pressing the I.A.
for a commission report and was dismissed as not pressed on
23.1.2021.
6. Later on 5.2.2021, the Trial court dismissed I.A. No. 1
of 2021 filed by the plaintiff for survey commission. It is after
that the application for amendment is filed by the defendant to
incorporate the counter claim for fixation of the boundary of the
counter claim schedule property based on the survey sketch, title
deeds of plaintiff and defendant and the records available with
2024:KER:74280
the Corporation of Cochin and for a permanent prohibitory
injunction from destroying the compound wall after construction
pursuant to the fixation of the southern boundary of the counter
claim schedule property. The learned Munsiff, relying on the
judgment of the apex court in Ashok Kumar Kalra v. Surendra
Agnihotri [(2020) 2 SCC 394] held that the defendants have not
stated anything to the effect that there is an exceptional
circumstance existed the case in hand to enable them to file a
counter claim by way of amendment. It was also found that the
suit is filed in the year 2015 and it is ripe for evidence and if it is
allowed, it will cause prejudice to the plaintiff and delay in the
trial of the suit.
7. In Ashok Kumar Kalra (supra), the question that came
up before the apex court was whether a counter claim could be
filed after written statement is filed. After a detailed discussion
of the various authorities, the Three Bench of the apex court has
2024:KER:74280
held in paragraph 21 as follows:
"21. We sum up our findings, that Order VIII Rule 6-A CPC
does not put an embargo on filing the counterclaim after filing
the written statement, rather the restriction is only with respect
to the accrual of the cause of action. Having said so, this does
not give absolute right to the Defendant to file the
counterclaim with substantive delay, even if the limitation
period prescribed has not elapsed. The court has to take into
consideration the outer limit for filing the counterclaim, which
is pegged till the issues are framed. The court in such cases,
have the discretion to entertain filing of the counterclaim, after
taking into consideration and evaluating inclusive factors
provided below which are only illustrative, though not
exhaustive:
(i). Period of delay.
(ii). Prescribed limitation period for the cause of action
pleaded.
(iii). Reason for the delay.
(iv). Defendant's assertion of his right.
(v). Similarity of cause of action between the main suit
and the counter-claim.
(vi). Cost of fresh litigation.
2024:KER:74280
(vii). Injustice and abuse of process.
(viii). Prejudice to the opposite party.
(ix). And facts and circumstances of each case.
(x). In any case, not after framing of the issues."
But His Lordship Mohan M. Shantanagoudar, J., had
endorsed the view of the Bench that the discretion of the court to
permit the filing of a counter claim till the framing of issues of
the trial. But a view was endorsed that in addition to this, in
exceptional circumstances, the subsequent filing of counter-
claim may be permitted till the stage of commencement of
recording of evidence on behalf of the plaintiff. So, in normal
cases, counterclaims cannot be allowed after framing of
issues. However, as stated above, it can be
permitted in particular circumstances.
8. Coming to the facts of this case, it can be seen that the
controversy is with respect to the width of the pathway lying on
2024:KER:74280
the southern side of the defendant's property in the east-west
direction. Unless and until the extent of the pathway is fixed by
surveying the property on the basis of the title deeds and other
documents available, the controversy cannot be settled. The
Commissioner's report originally filed is not on the basis of any
survey sketch, but on the plain lie and nature of the
property. The application submitted by the defendants for
appointment of a commissioner and surveyor was dismissed as
not pressed only on the fact that the plaintiff has come forward
with another commission application to survey the property with
the help of a surveyor. When the said application was dismissed,
the defendant had no other option but to amend the statement and
to incorporate a counter claim for fixation of boundary on the
southern side of his property.
9. In Ashok Kumar Kalra (supra), the apex court has held
as follows:
2024:KER:74280
"18. As discussed by us in the preceding paragraphs, the whole
purpose of the procedural law is to ensure that the legal process is
made more effective in the process of delivering substantial
justice. Particularly, the purpose of introducing Rule 6-A in Order
8 CPC is to avoid multiplicity of proceedings by driving the
parties to file separate suit and see that the dispute between the
parties is decided finally. If the provision is interpreted in such a
way, to allow delayed filling of the counterclaim, the provision
itself becomes redundant and the purpose for which the
amendment is made will be defeated and ultimately it leads to
flagrant miscarriage of justice. At the same time, there cannot be
a rigid and hyper- technical approach that the provision stipulates
that the counterclaim has to be filed along with the written
statement and beyond that, the Court has no power. The Courts,
taking into consideration the reasons stated in support of the
counterclaim, should adopt a balanced approach keeping in mind
the object behind the amendment and to subserve the ends of
justice. There cannot be any hard and fast Rule to say that in a
particular time the counterclaim has to be filed, by curtailing the
discretion conferred on the Courts. The trial court has to exercise
its discretion judiciously and come to a definite conclusion that by
allowing the counterclaim, no prejudice is caused to the opposite
party, the process is not unduly delayed, and the same is in the
best interest of justice and as per the objects sought to be achieved
through the amendment. But however, we are of the considered
opinion that the Defendant cannot be permitted to file
counterclaim after the issues are framed and after the suit has
proceeded substantially. It would defeat the cause of justice and
be detrimental to the principle of speedy justice as enshrined in
the objects and reasons for the particular amendment to CPC."
2024:KER:74280
10. The counsel for the 1st respondent has argued that the
cause of action for filing for a counter claim was arisen on
3.5.2015 and 22.5.2015 when the plaintiff demolished the
compound wall. The suit was filed on 23.5.2015, and a written
statement was filed on 22.6.2016. The issues were framed on
10.7.2019. Therefore, the defendants were well aware that the
cause of action for counter claim arose before the filing of the
suit. They have not raised the counterclaim along with the
written statement, and the application for amendment was filed
only in the year 2021. Thus, the claim made by the defendant is
clearly barred by limitation, and in such circumstances, the court
cannot permit the incorporation of a counterclaim. The intention
of the defendants is to get over the orders passed in I.A. No.5585
of 2019 and to get over the limitation provided under the
Limitation Act, as time-barred suits cannot be entertained under
2024:KER:74280
the guise of a counterclaim.
11. The counsel for the 1st respondent relied on Abdul
Razzak S. v. Suraja Devi C B. (2024 KHC OnLine 846) and
argued that after framing of issues, the defendants could not be
allowed to raise any counterclaim. It is true that going by the
decision in Ashok Kumar Kalra (supra), the counterclaim
cannot be allowed to be incorporated after framing of the issues,
but at the same time, under exceptional circumstances, the
counterclaim can be permitted till the commencement of the
recording of evidence. Admittedly, the trial has not started, and
therefore, considering and perusing the facts and circumstances
of this case, the judgement relied on is not squarely applicable to
the facts of this case.
12. As held by the apex court, the whole purpose of
procedural law is to deliver substantial justice and to prevent
multiplicity of suit. It is to be borne in mind that if the
2024:KER:74280
counterclaim is rejected, it will not preclude the defendants from
filing a fresh suit for the same relief. It is true that time-barred
claims cannot be entertained through a counterclaim, but at the
same time, procedural law has to give way to render substantial
justice to the parties and prevent the multiplicity of
suits. Therefore, on an overall consideration of the facts and
circumstances of the case and dictum laid down by the apex
court, I am of the opinion that for rendering substantial justice
to the parties, the counterclaim is to be allowed, subject to the
contention of the plaintiff regarding the law of limitation of the
claim.
In the result, this O.P.(C) is disposed of. Ext.P11 order is
quashed, I.A. No.4 of 2021 is allowed, and the petitioners are
permitted to amend the written statement incorporating the
counterclaim. It is made clear that the plaintiffs/respondents,
while filing written statement to the counter claim, it is open to
2024:KER:74280
plaintiff to raise all legal contention including the plea of the law
of limitation in regard to the reliefs sought for in the counter
claim. Based on the counter claim, a new issue can also be
issued by the trial court and taking note of the fact that the suit
is of the year 2015, I direct the learned Munsiff to dispose of the
suit before the Court closes for summer vacation - 2025.
Sd/-
BASANT BALAJI
JUDGE
dl/
2024:KER:74280
APPENDIX OF OP(C) 1276/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PAINT IN O.S NO 636 OF 2015 ON
THE FILES OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM
DATED 23.5.2015
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO 636
OF 2015 ON THE FILES OF PRINCIPAL MUNSIFF'S
COURT, ERNAKULAM DATED 22.6.2016
Exhibit P3 TRUE COPY OF THE COMMISSION REPORT WITH ROUGH
SKETCH DATED 11.11.2015 IN I.A. NO. 36 66 OF 2015
Exhibit P4 TRUE COPY OF THE COMMISSION APPLICATION FILED AS
I.A. NO. 5585 OF 2019 DATED 26.7.2019
Exhibit P5 TRUE COPY OF I.A. NO. 1 OF 2021 DATED 12TH
JANUARY, 2021
Exhibit P6 TRUE COPY OF WORK MEMO FILED IN EXT. P5
Exhibit P7 TRUE COPY OF THE COPY OF THE ASSET REGISTER OF
CORPORATION OF KOCHI RECEIVED UNDER THE RIGHT TO
INFORMATION DATED 23.11.2019 ISSUED BY THE
CORPORATION OF KOCHI
Exhibit P8 TRUE COPY OF THE LIST OF DOCUMENTS SUBMITTED BY
THE DEFENDANTS DATED 12.7.2016
Exhibit P9 TRUE COPY OF I.A. NO. 4 OF 2021 IN O.S. NO. 636
OF 2015 ON THE FILES OF THE PRINCIPAL MUNSIFF'S
COURT, ERNAKULAM DATED 6.4.2021
Exhibit P10 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE
PLAINTIFF IN REPLY TO EXT. P9 DATED 4.8.2021
Exhibit P11 CERTIFIED COPY OF ORDER IN I.A. NO. 4 OF 2021 IN
O.S. NO. 636 OF 2015 DATED 21ST DAY OF JUNE, 2022
ON THE FILES OF PRINCIPAL MUNSIFF'S COURT,
ERNAKULAM.
