Premachandran, S/O. Late. Kumaran vs Louis Antony, Aged 81 Years, S/O.Louis

3 GEORGE, AGED 44 YEARS, S/O.ROCKY, RESIDING AT PANAKKAL HOUSE, WARD NO.6, 2025:KER:10761

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: 2025:KER:10761

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 2025:KER:10761

O.P.(C)No.1731 of 2022 4

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, 2025:KER:10761

O.P.(C)No.1731 of 2022 5

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 2025:KER:10761

O.P.(C)No.1731 of 2022 6

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.

2025:KER:10761

O.P.(C)No.1731 of 2022 7

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

O.P.(C)No.1731 of 2022 8

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