K K KABEER Vs. BEEVI K M

JUDGEMENT

(1.) RESPONDENT appears through counsel.

(2.) DEFENDANT in O.S. No.8 of 2008 of the court of learned Additional Sub Judge, Palakkad challenges Exts.P7 and P8, orders dismissing I.A. No.830 and 829 of 2010, respectively for impleadment of additional respondents in the counter claim and for consequential amendment. Respondent sued petitioner for recovery of possession of the suit property on the strength of title and for injunction. Petitioner contended that property belonged to his brother, the late Haneefa as per sale deed No.881 of 1990 and the said Haneefa had created a mortgage in respect of the said property in favour of petitioner on 04.09.1996 for a loan availed by him. Stating so, petitioner made a counter claim for recovery of amount allegedly due to him. Haneefa had expired and according to the petitioner even before the suit was instituted. But in the counter claim petitioner did not implead legal heirs of the said Haneefa. Later came Exts.P3 and P4, applications for impleadment of legal heirs of the deceased Haneefa and for consequential amendment in the counter claim. Those applications were opposed by the respondent as per Exts.P5 and P6. Learned Sub Jude dismissed the application for impleadment for the reason that counter claim can be sought for against the plaintiff and that it cannot be raised against defendants who are not yet defendants. Dismissal of application for consequential amendment followed. Learned counsel for petitioner relying on the decision in Robit Singh v. State of Bihar (2007 [2] KLT SN 30 [SC] Case No.43) contended that though counter claim has to be directed against the plaintiff, incidentally, along with the plaintiffs it could be directed against co-defendants also and if necessary for the said purpose necessary parties could be impleaded in the counter claim. I have heard learned counsel for respondent also who contended that counter claim itself should have been excluded from the suit on the facts of the case.