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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Anil Kumar, S/o K.N Narendran – Appellant
Versus
Sunil Kumar, S/o K.N Narendran – Respondent
RSA No. 223 of 2023
Decided on : 05-09-2023
Code of Civil Procedure, 1908 - Order VIII Rule 6B - Order VII Rule 1 - Second Appeal - Seeking declaration of title over plaint A and B schedule properties - Seeking permanent prohibitory injunction - Whether such counter-claim is in the nature of a claim for damages or not - Legal position is clear on point that even after filing written statement, a separate counterclaim at the instance of the defendant can be filed by resorting to Order VIII Rule 6A(1) of CPC. (Para 16).
Finding of the Court: Trial court as well as first appellate court found no evidence that plaintiff miserably failed to prove title over plaint A and B schedule items and nothing substantiated to ignore or to read Ext.A2/B1 as sham document or a document executed in name of first defendant as a name lender. To contrary, both courts below concurrently found that first defendant purchased property and constructed building therein and therefore, first defendant is entitled to declare his title in relation to counter-claim item Nos.1 and 2 property and to get recovery of possession of the same.
Result: Second Appeals dismissed.
JUDGMENT :
RSA No.223 of 2023 has been filed by the appellant in A.S.No.9 of 2019 on the files of the Sub Court, Chengannur, challenging judgment dated 30.07.2019 in the above appeal.
2. RSA No.395 of 2023 is also one filed by the same appellant challenging judgment dated 30.07.2019 in A.S.No.10 of 2019 on the files of the Sub Court, Chengannur.
3. Respondents herein are the defendants in O.S.No.136 of 2013 on the files of the Munsiff Court, Mavelikara, wherefrom A.S.Nos.9/2019 and 10/2019 were filed before the Sub Court. The present Second Appeal arises out of A.S.Nos.9/2019 and 10/2019. As per the trial court decree and judgment, the learned Munsiff dismissed the suit filed by the plaintiff for declaration of title of the plaintiff over the plaint schedule items and decreed the counter filed by the 1st defendant allowing recovery of possession on the basis of Ext.B1/A2 title of the 1st defendant. In fact, the suit was one filed by the appellant herein as plaintiff seeking declaration of title over the plaint A and B schedule properties and also seeking permanent prohibitory injunction restraining the defendants from obstructing running of a bakery business in plaint B schedule room.
4. Resisting the contention raised by the appellant herein, the first respondent/first defendant in the above suit filed counter-claim contending that he obtained absolute title in respect of the plaint A and B schedule items by virtue of sale deed No.1422 of 1999 and accordingly, the first defendant sought for declaration of his title over counter-claim item No.1 property and counter-claim item No.2 shop room situated therein (The same are plaint A and B schedule items respectively).
5. The parties in this Second Appeal shall be referred as `plaintiff' and `defendant' for easy reference, hereafter.
6. The trial court ventured the matter. PWs 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B8 were marked on the side of the defendants/counter-claim plaintiffs. Ext.C1 was also marked.
7. The trial court appraised the evidence and finally dismissed the suit and decreed the counter-claim as under.
(1) “It is hereby declared that the counterclaim 1st plaintiff (1st defendant) has got right and title over counterclaim schedule item No.1 property and counterclaim schedule item No.2 shop room.
(2) Counterclaim defendant/original plaintiff is hereby directed to hand over vacant possession of counter claim schedule item No.2 shop room to the counter claim 1st plaintiff, within one month from the date of the decree. Failing which, the counter claim 1st plaintiff is at liberty to evict the counter claim defendant through the process of the court.
(3) There will not order as to costs.”
8. Separate appeals were filed before the appellate court, challenging dismissal of the suit as well as grant of decree in the counter-claim. On re-appreciation of the evidence, the appellate court dismissed both appeals and confirmed the decree and judgment of the trial court.
9. Heard the learned counsel appearing for the appellant/plaintiff and the learned counsel appearing for the respondents/defendants.
10. The learned counsel for the plaintiff submitted that the counter-claim filed by the defendants in the suit is not in conformity with the provisions of Order VIII Rule 6B of the Code of Civil Procedure (`CPC' hereafter) since the counterclaim shall mandatorily be filed in the form of a plaint as provided under Order VII of CPC.
11. Learned counsel for the plaintiff placed a copy of the counter-claim for perusal of this Court to buttress his contention that the counter-claim filed by the defendants did not justify the mandate of Order VIII Rule 6B read with Order VII CPC.
12. But this contention was specifically opposed by the learned counsel for the defendants and submitted that the counter-claim filed by the defendants is in
As per sub rule 4 of Rule 6A, the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
Minor omissions in fulfilling counter-claim requirements should not lead to dismissal at the appellate stage but should be rectified before trial courts.
Counterclaims may be allowed after closing evidence if justified by circumstances; procedural rules must serve justice.
Counter-claims must be timely and justified; substantial delay without explanation can result in rejection, although courts retain discretion to evaluate circumstances.
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
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