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2025 Supreme(Online)(Ker) 67601
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MURALI PURUSHOTHAMAN, J
MUHAMMED S/O. ABDUL KHADER – Appellant
Versus
K. BINEESH – Respondent
OP(C) NO. 1484 OF 2014
For the Appellants/Petitioners: SRI.A.BALAGOPALAN, SRI.M.S.IMTHIYAZ AHAMMED, SHRI.M.N.MANMADAN, SHRI.A.RAJAGOPALAN
For the Respondents: SRI.A.S.BENOY, SRI.P.A.FIROZKHAN, SRI.MATHEW B. KURIAN, SHRI.N.S.MOHAMMED USMAN, SMT.PRIYA DEVI.P, SRI.C.N.SREEKUMAR, SRI.K.T.THOMAS, SRI.V.M.KURIAN
Counter claims filed after issue framing may be denied if they delay proceedings, prioritizing judicial efficiency.
Headnote:(A) Code of Civil Procedure, 1908 - Order 8 Rule 6A - Counter Claims - The amendment application for counter claim filed after 1½ years of framing issues is subject to discretionary rejection if it stalls judicial process - The refusal to admit a late counter claim is confirmed by precedents emphasizing timely claims. (Paras 6-9)
(B) Amendment of Written Statement - Legal standards for amending should consider issue framing and necessity, with emphasis on judicial expediency. (Paras 4-5)
Facts of the case:
The petitioner/1st defendant seeks to amend his written statement in a suit for permanent injunction due to an alleged inadvertent omission to raise a counter claim regarding boundary fixation. The Munsiff rejected the application, stating it was filed too late.
Findings of Court:
The court affirmed the lower court's discretion in rejecting the counter claim amendment application, observing that allowing it would unnecessarily prolong proceedings.
Issues: The main issue involves the permissible timing of a counter claim relative to issue framing in civil procedures.
Ratio Decidendi: The court reiterated that counter claims introduced after issues are framed primarily may delay proceedings, justifying the trial court's rejection.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. judicial discretion in counter claims (Para 1 , 6 , 8) |
| 2. permissible counter claim timing (Para 2 , 3) |
| 3. arguments for amendment of written statement (Para 4 , 5) |
| 4. counterclaims must adhere to legal timelines (Para 7) |
| 5. final ruling on petition rejection (Para 9) |
JUDGMENT
This original petition is filed against Ext.P7 order passed in I.A No.7887 of 2013 in O.S No.911 of 2011 on the files of the Court of the II Additional Munsiff, Ernakulam, rejecting the application of the petitioner/1st defendant for amendment of the written statement to incorporate the counter claim.
2. The suit is filed by the 1st respondent/plaintiff for permanent prohibitory injunction restraining the petitioner/1st defendant and the 2nd respondent/2nd defendant from entering into the plaint schedule property and also for damages caused due to the demolition of the boundary wall by the 1st defendant. Ext.P1 is the copy of the plaint. The petitioner filed Ext.P3 written statement contending that neither the plaintiff nor his vendor had title or possession over the plaint schedule property and that the plaint schedule property is not identifiable.
3. The issues were framed on 26.05.2012. Thereafter, on 02.12.2013, the petitioner filed I.A No.7887 of 2013 (Ext.P5) seeking permission to amend the written statement so as to incorporate a prayer for fixation of boundary and for a decree for permanent prohibitory injunction restraining the plaintiff, the 2nd defendant, their men and agents from causing or creating any kind of obstruction to the petitioner in constructing a fence or boundary wall on the boundaries of the counter claim schedule property. It is stated that due to an inadvertent omission he failed to raise a counter claim for fixation of boundary at the time of filing written statement. The 1st respondent filed Ext.P6 objection to Ext.P5. The learned Munsiff, by Ext.P7 order, dismissed the application. The relevant portion of Ext.P7 order reads as follows:-
“4. In the above matter, issues were framed by this Court as early as on 26.05.2012 and the matter was posted for steps to 25.06.2012. Thereafter the matter was posted for several times for taking steps. As held by our Hon’ble Apex Court in Gayathri Womens’ Welfare Association v/s Gowramma and another [ 2011 (2) SCC 330 ] counterclaim not contained in the original written statement has to be refused to be taken on record especially if issues have already been framed. In this matter, the amendment application is seen filed by the plaintiff only after a period of 1½ years after the framing of issues and the matter was about to be listed. In a suit for injunction simplicitor this Court is only concerned with the question of possession. If the plaintiff fails to prove the identity of boundaries the suit will go. For determining the original subject matter of the suit the prayer sought in the counterclaim is not necessary. The reliefs sought in the counterclaim can be raised by the defendant by filing an independent suit. This Court feels that allowing amendment application at this stage to incorporate a counterclaim for fixation of boundary will only protract the final disposal of the matter. This court also feels that in view of the observations made by the Hon’ble Supreme Court in the decision cited supra also this petition is only liable to be dismissed.
In the result, petition dismissed. No costs.”
4. It is contended by the learned counsel for the petitioner that the court below ought to have allowed the application to amend the written statement and to incorporate the counter claim as no prejudice will be caused to the respondents. It is further contended that by allowing the amendment, it will only ensure the finality of the litigation between the parties.
5. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
6. Admittedly, the counter claim was filed after 1½ years of the framing of the issues. This Court in Gayathri Women’s Welfare Association
