IMPORTANT POINT
Counter claims must be raised before issues are framed and within the limitation period, as per the Code of Civil Procedure and Limitation Act.

JUDGMENT :

1. The plaintiff in O.S.No. 6 of 1997 has approached this Court challenging the order of the trial court in permitting the defendants to amend the written statement, thereby allowing them to raise a counter claim against the plaintiff.

2. The suit is one for declaration and injunction. Initially, the suit was dismissed against which an appeal was preferred by the petitioner before the Addl. District Court, Ernakulam as A.S. No. 10 of 2003 which was also dismissed. Aggrieved by the dismissal of the appeal, A.S. No. 10 of 2003, the petitioner filed R.S.A No. 54 of 2006. By judgment dated 04.01.2012, this Court allowed the appeal, setting aside the dismissal of the suit and remanding the suit for a fresh consideration. While remanding the matter back to the trial court, this Court found that it is necessary to measure the properties of the plaintiff and the defendants with reference to their respective documents of title. It was also found that since Exts.C2 and C2(a) and the properties of the plaintiff and the defendants were not measured with the documents and title, this Court found that the report cannot be accepted. On remand, the plaintiff took commission for local inspection and Ext.P7 report was filed by the advocate commissioner. Once the report was filed, the defendants sought leave to amend their written statement and thereby sought to raise a counter claim against the plaintiff/petitioner. By raising the counter claim the defendants wanted to incorporate a prayer for a mandatory injunction directing the plaintiff to remove/demolish the constructions made in the counter claim schedule property. Though the petitioner resisted the application for amendment on the ground that there is considerable delay on the part of the defendants in raising the counter claim, the court below by the order impugned, allowed the amendment thereby permitting the defendants/respondents to raise the counter claim. It is aggrieved by the aforesaid order, the petitioner has approached this Court invoking the powers under Article 227 of the Constitution of India.

3. I have heard R.S. Kalkura, the learned counsel appearing for the petitioner, G.Rajagopal, S. Leenalekshmi and N. Renjnee Devi, the learned counsel appearing for the respondents 1 and 2.

4. Sri.R.S.Kalkura raised a preliminary objection with regard to the maintainability of the counter claim on the ground that the same is barred by limitation. He also further pointed out that, there is no absolute right for the defendants to file counter claim and at any rate, the counter claim should have been filed before the time prescribed for delivering the defense. He relied on the judgment of the Hon’ble Supreme Court in Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri, 2019 (4) KLT 790 (SC). In so far as the contention regarding the period of limitation is concerned, the learned counsel appearing for the petitioner relied on the judgment of the Supreme Court in Thomas Mathew v. Construction Engineer, K.L.D.C. Limited, (2018) 12 SCC 560. According to the learned counsel, the trial court has gone beyond the order of remand and therefore, the order is unsustainable.

5. On the other hand, the learned counsel appearing for the respondents/defendants submitted that there is no period prescribed for filing of counter claim. According to the learned counsel, since the wrong committed by the plaintiff was continuing in nature, there cannot be any limitation to peg the defendants in the matter of filing of the counter claim. It is pointed out by the learned counsel that the principles governing the amendment of the written statement have to be liberally construed. He relied on the judgment of the Supreme Court in Sankar Dastidar v. Shrimati Banjula Dastidar, AIR 2007 SC 514. He also relied on the following judgments of Madras High Court Bharathamatha Desiya Sangam v. Roja Sundaram and Others, AIR 1987 Madras 183 and Sheo Narayan Singh and Others v. Ambica Singh and Others, AIR 1970 Pat 246.