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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.BABU, J
Lainakalillath Thidil Kunhipathu W/o.abdul Hameed – Appellant
Versus
Indian Union Muslim League Kanhangad – Respondent
JUDGMENT :
The order permitting the defendants in a suit to set up a counter-claim after filing of the written statement is under challenge. The plaintiff is the petitioner. The contesting defendants are the respondents.
2. The plaintiff instituted the original suit for a declaration that the recitals in a document regarding the right of way through the property described therein is not valid and binding on him and for other consequential reliefs.
3. The contesting defendants resisted the suit by filing a written statement on 21.11.2018. The relevant pleadings in the written statement are contained paragraphs 18 and 19, which are extracted below:-
“18. The defendants and their predecessors in interest have been using the said road starting from the TB road and passing through the 'A' schedule property to their property continuously, peacefully without interruption, as of right and as an easement. The road is apparent and continuous and it is absolutely necessary for the enjoyment of the defendant's property. The road was kept undisturbed while the aforesaid partition was taken place and subsequently for the reason that the same is required for the enjoyment of the respondents'property
A counter-claim can be filed after the written statement if the cause of action arose prior to or during the suit, subject to judicial discretion to avoid prejudice.
The court ruled that discretion is preserved in allowing plaintiffs to file written statements to counter-claims beyond the 90-day limit if permitted by the court.
A counter-claim cannot be permitted after the framing of issues unless exceptional circumstances exist, which were not present in this case.
The court has discretion under CPC provisions to allow extensions for filing replies to counter-claims, affirming flexibility over rigid limitations.
The court clarified that there is no fixed time limit for filing additional written statements to counter-claims, and such filings can be made upon obtaining leave from the court.
A counter-claim can be allowed even after the settlement of issues if it arises from the same transaction or subject matter and preserves the integrity of the legal process.
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