Kerala High Court
Premachandran, S/O. Late. Kumaran vs Louis Antony, Aged 81 Years, S/O.Louis on 10 February, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:10761
O.P.(C)No.1731 of 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
OP(C) NO. 1731 OF 2022
AGAINST THE ORDER DATED 16.07.2022 IN IA NO.2988 IN
OS NO.70/2017 OF 2019 OF THE PRINCIPAL MUNSIFF COURT, KOCHI
PETITIONER/PETITIONER/1ST DEFENDANT:
PREMACHANDRAN, S/O. LATE. KUMARAN,
AGED 60 YEARS,
RESIDING AT NARANATTU HOUSE,
NAYARAMBALAM P.O., ERNAKULAM, PIN - 682509
BY ADVS.
SRI.B.KRISHNA MANI
SMT.N.V.SANDHYA
SRI.DHANUJA M.S
RESPONDENTS/RESPONDENTS 1 TO 5 PLAINTIFFS AND DEFENDANTS 2
TO 5:
1 LOUIS ANTONY, AGED 81 YEARS, S/O.LOUIS
RESIDING AT PANAKKAL HOUSE, WARD NO.6,
NAYARAMBALAM P.O., ERNAKULAM DISTRICT,
PIN - 68250 (DIED. LRS IMPLEADED AS ADDL.R6 TO
R8)
2 SAJEEVAN, AGED 49 YEARS,
S/O.PRABHAKARAN,
RESIDING AT NARANATTU HOUSE, WARD NO.6,
NAYARAMBALAM P.O., ERNAKULAM DISTRICT,
PIN - 682509
3 GEORGE, AGED 44 YEARS, S/O.ROCKY,
RESIDING AT PANAKKAL HOUSE, WARD NO.6,
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O.P.(C)No.1731 of 2022
2
NAYARAMBALAM P.O., ERNAKULAM DISTRICT,
PIN - 682509
4 THOMAS, AGED 54 YEARS, S/O.ROCKY.
RESIDING AT PANAKKAL HOUSE, WARD NO.6,
NAYARAMBALAM P.O., ERNAKULAM DISTRICT,
PIN - 682509
5 JOHNY, AGED 59 YEARS, S/O.PAPPACHAN,
VATTATHARA HOUSE, WARD NO.6,
NAYARAMBALAM P.O., ERNAKULAM DISTRICT,
PIN - 682509
*ADDL.R6 BABY
W/O.LOUIS ANTONY, AGED 74 YEARS, RESIDING AT
PANAKKAL HOUSE, NAYARAMBALAM P.O., ERNAKULAM
DISTRICT-682509.
*ADDL.R7 P.A. LAISA,
AGED 53 YEARS
W/O.DOMENIC, RESIDING AT PANDIKASALAKKAL HOUSE,
PALLIPPURAM P.O., ERNAKULAM DISTRICT- 682509.
*ADDL.R8 P.A. STELLA,
AGED 51 YEARS
W/O. SEBI, RESIDING AT ODATHUMPARAMBIL HOUSE,
NAYARAMBALAM P.O., ERNAKULAM DISTRICT-682509.
*(IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED
1ST RESPONDENT VIDE ORDER DATED 05.01.2024 IN
I.A.NO. 1/2023)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P.(C)No.1731 of 2022
3
K.BABU, J.
-------------------------------------------
O.P.(C) No.1731 of 2022
---------------------------------------------
Dated this the 10th day of Februrary, 2025
JUDGMENT
The challenge in this Original Petition is to the order
dated 16.07.2022 in I.A.No.2988/2019 in O.S.No.70/2017 on
the file of the Principal Munsiff's Court, Kochi. Defendant
No.1 in the Original Suit is the petitioner. The plaintiff and
defendant Nos. 2 to 5 are the respondents.
2. The plaintiff instituted the Original Suit for
fixation of boundary and for consequential injunction.
Defendant No.1 resisted the suit by filing written statement
as early as in 2017. The Court issued a commission. The
Commissioner measured the property with the assistance of
a Surveyor. The Court below framed the issues and
proceeded with the trial.
3. After two years of framing of issues, the
petitioner/defendant No.1 filed an application seeking
amendment in the written statement along with a counter
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claim seeking recovery of possession and mandatory
injunction. The Trial Court dismissed the application holding
that the petitioner sought relief in respect of a time barred
claim and that the application is highly belated. The Trial
Court relied on Ashok Kumar Kalra v. Wing Cdr.
Surendra Agnihotri and Others [(2020) 2 SCC 394 :
2019 (5) KHC 735], in support of the findings.
4. I have heard the learned counsel for the
petitioner.
5. The learned counsel for the petitioner submitted
that the Commissioner filed report in 2019 and it was based
on the report of the Commissioner that he sought the
counter-claim.
6. The time limit for filing counter-claim was
considered by a Three Judge Bench of the Supreme Court in
Ashok Kumar Kalra (supra). After referring to all the
precedents on the subject, the Supreme Court concluded
thus:-
"16. The time limitation for filing of the counter-
claim, is not explicitly provided by the Legislature,
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rather only limitation as to the accrual of the cause
of action is provided. As noted in the above
precedents, further complications stem from the fact
that there is a possibility of amending the written
statement. However, we can state that the right to
file a counter-claim in a suit is explicitly limited by
the embargo provided for the accrual of the cause of
action Under Order VIII Rule 6A. Having said so, this
does not mean that counter-claim can be filed at any
time after filing of the written statement. As counter-
claim is treated to be plaint, generally it needs to
first of all be compliant with the limitation provided
under the Limitation Act, 1963 as the time-barred
suits cannot be entertained under the guise of the
counter-claim just because of the fact that the cause
of action arose as per the parameters of Order VIII
Rule 6A.
17. 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 6A in Order VIII of
the 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 counter-claim, 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 counter-claim 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 sub-serve
the ends of justice. There cannot be any hard and
fast rule to say that in a particular time the counter-
claim has to be filed, by curtailing the discretion
conferred on the Courts. The Trial Court has to
exercise the discretion judiciously and come to a
definite conclusion that by allowing the counter-
claim, no prejudice is caused to the opposite party,
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 counter-claim
after the issues are framed and after the suit has
proceeded substantially. It would defeat the cause of
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justice and be detrimental to the principle of speedy
justice as enshrined in the objects and reasons for
the particular amendment to the CPC.
18. In this regard having clarified the law, we may
note that the Mahendra Kumar Case (supra) needs
to be understood and restricted to the facts of that
case. We may note that even if a counter-claim is
filed within the limitation period, the Trial Court has
to exercise its discretion to balance between the
right to speedy trial and right to file counter-claim,
so that the substantive justice is not defeated. The
discretion vested with the Trial Court to ascertain
the maintainability of the counter-claim is limited by
various considerations based on facts and
circumstances of each case. We may point out that
there cannot be a straitjacket formula, rather there
are numerous factors which needs to be taken into
consideration before admitting counter-claim.
19. We may note that any contrary interpretation
would lead to unnecessary curtailment of the right of
a defendant to file counter-claim. This Court needs
to recognize the practical difficulties faced by the
litigants across the country. Attaining the laudable
goal of speedy justice itself cannot be the only end,
rather effective justice wherein adequate
opportunity is provided to all the parties, need to be
recognized as well (refer to Salem Advocate Bar
Association Case (supra)).
20. We sum up our findings, that Order VIII Rule 6A
of the CPC does not put an embargo on filing the
counter-claim 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 counter-claim 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 counter-claim, which is pegged till the
issues are framed. The Court in such cases have the
discretion to entertain filing of the counter-claim,
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.
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vi. Cost of fresh litigation.
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."
7. In the present case, the Original Suit was filed in
2017. The petitioner/defendant No.1 filed the written
statement in 2017. In 2017 itself, the Trial Court framed
issues. The amendment to incorporate the counter claim
was filed in 2019. The Trial Court took note of the contention
of the respondents that the reliefs sought for are time
barred. This Court finds no circumstances that warrant
interference under Article 227 of the Constitution of India.
The Original Petition lacks merits and it stands
dismissed.
Sd/-
K.BABU
JUDGE
VPK
2025:KER:10761
APPENDIX OF OP(C) 1731/2022
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE PLAINT IN
O.S.NO.70/2017 BEFORE THE HON'BLE
MUNSIFF'S COURT KOCHI DATED 16-02-2017
Exhibit-P2 TRUE COPY OF THE WRITTEN STATEMENT IN
O.S.NO.70/2017 BEFORE THE HON'BLE
MUNSIFF'S COURT KOCHI DATED 24-5-2017
Exhibit-P3 TRUE COPY OF THE APPLICATION IN
I.A.NO.3042/2017 IN O.S.NO.70/2017
BEFORE THE HON'BLE MUNSIFF'S COURT KOCHI
Exhibit-P4 TRUE COPY OF THE WORK MEMO FILED BY THE
1ST DEFENDANT IN O.S.NO.70/2017 BEFORE
THE HON'BLE MUNSIFF'S COURT KOCHI DATED
5-12-2017
Exhibit-P5 TRUE COPY OF THE COMMISSION REPORT ALONG
WITH SKETCH IN O.S.NO.70/2017 BEFORE THE
HON'BLE MUNSIFF'S COURT KOCHI DATED 9-
10-2019
Exhibit-P6 TRUE COPY OF THE AMENDMENT APPLICATION
IN I.A.NO.2988/2019 IN O.S.NO.70/2017
BEFORE THE MUNSIFF'S COURT KOCHI DATED
NIL
Exhibit-P7 TRUE COPY OF THE OBJECTION
INI.A.NO.2988/2019 IN O.S.NO.70/2017
BEFORE THE MUNSIFF'S COURT KOCHI DATED
09-01-2020
Exhibit-P8 TRUE COPY OF THE ORDER IN
I.A.NO.2988/2019 IN O.S.NO.70/2017
BEFORE THE PRINCIPAL MUNSIFF'S COURT
KOCHI DATED 16-07-2022
