J U D G M E N T

Dated this the 25th Day of November, 2021 The petitioners are the defendants/counter claimants in O.S.No.209 of 2010 on the files of the Munsiff’s Court, Attingal. The suit is with respect to the strip of land described as ‘B’ schedule in the plaint and lying in between the properties of the plaintiffs and the defendants. The plaintiffs claim exclusive right over ‘B’ schedule contending that B schedule way forms part of their property and no one else has the right to use ‘B’ schedule. The defendants filed written statement, contending that ‘B’ schedule is part of a common way formed by surrender of land by the plaintiffs and neighbouring property owners.

2. After filing of written statement, the plaint was amended. Thereupon, defendants filed additional written statement and raised a counter claim. The relief sought in the counter claim is to declare ‘B’ schedule, (A schedule in the counter claim) to be a public way and to injunct the plaintiffs from obstructing the free movement of the defendants through the way. They raised objection against the counter claim and sought to exclude the counter claim from the additional written statement. By Ext.P4 order, trial court allowed the application and excluded the counter claim, permitting the defendants to file independent suit in respect of the claim.

3. Sri. Liju M.P., learned Counsel for the petitioner contended that the trial court committed a material irregularity in having excluded the counter claim. It is submitted that all throughout the petitioners had contended that ‘B’ schedule way was created by the surrender of properties by the plaintiffs, defendants and nearby property owners and hence, the way is a public way. It is submitted that cause of action for the counter claim arose on 15.12.2018, when the petitioners were obstructed from using the ‘B’ schedule way. Assailing the finding in the impugned order that the counter claim raised without resorting to the procedure prescribed under Section 91 (b) and Order 1 Rule 8 of CPC cannot be entertained, it contended that even though ‘B’ schedule is stated to be a public way, its user is limited to the persons residing in the vicinity and therefore, it does not fall within the meaning of public way in the larger sense. Finally it is contended that, rather than compelling the petitioners to file a separate suit, the trial court ought to have considered the counter claim on merits, since the very object of the provision is to ensure that all disputes are brought within the purview of one suit, so as to reduce multiplicity of litigationS.

4. Sri. R.S. Kalkura, learned Counsel for the respondents put forth the following contentions:

(i) Going by the relief sought in the counter claim, petitioners are alleging public nuisance against the respondents for having obstructed a public way. As such, it is imperative to follow the procedure prescribed under Section 91(b) and Order 1 Rule 8 of CPC.

(ii) Even otherwise, the counter claim should have been raised before framing of issues, whereas, in the case at hand, the counter claim was raised much after the issues were framed.

5. The suit is for a perpetual injunction, founded on the plaintiffs’ claim of exclusive possession over ‘B’ schedule. The defence contention is that ‘B’ schedule is a public way and they also have the right to use the way. In such circumstances, the outcome of the suit will decide the nature and character of ‘B’ schedule way.

6. In support of the contention that the counter claim cannot be raised after framing of issues, learned Counsel placed reliance of the decision of the Hon’ble Supreme Court in [2019 (5) KHC 735], Ashok Kumar Kalra V. Wing Cdr Surendra Agnihotri and others.

7. In reply, learned Counsel for the petitioners submitted that in the instant case, the claim was amended and additional written statement filed after framing of issues. As such, the court will have to frame additional issues and hence the dictum laid down by the Hon’ble Supreme C