VIDYADHARAN Vs. THANKAMMA

JUDGEMENT

(1.) The petitioner herein filed O.S. No. 179 of 2010 on the file of the court of the Munsiff of Irinjalakuda for fixation of boundary of the plaint schedule property. The defendants filed a written statement on 9.6.2010. Thereafter, the defendants filed I.A. No. 4250 of 2010 to amend the written statement and to incorporate a counter claim. The court below allowed the application by Ext. P5 order dated 21st December 2010, which is under challenge in this Original Petition. The learned counsel for the petitioner submitted that the court below was not justified in allowing the amendment. The defendant did not file the counter claim on the date of filing of the written statement. Therefore, the defendants are precluded from filing a counterclaim later. It is pointed out that the cause of action for the counterclaim arose on 10.5.2010.

(2.) Sub-rule (1) of R. 6A of Order VIII of the Code of Civil Procedure reads as follows:

(3.) The requirement of sub-r. (1) of R. 6A of O. VIII C.P.C. is that the counterclaim must relate to a cause of action accrued to the defendant against the plaintiff before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The cause of action for the counter claim could be one which arose either before or after the filing of the suit. A cause of action which has arisen after the filing of the written statement or after the time limited for delivering the defence has expired, cannot be the basis for filing a counter claim. On the other hand, if the cause of action for the counter claim arose before the date of filing of the written statement or before the time limited for delivering the defence has expired, such a counter claim could be entertained even after filing the written statement. The date of filing of the written statement or the expiry of the time limited for filing of the written statement has relevance only to the cause of action for the counter claim and it has no relevance for filing the counter claim. Counter claim could be preferred even later by way of amendment of written statement The only restriction is that such counterclaim must relate to a cause of action which accrued before the filing of the written statement or before the time limited for delivering the defence has expired.