JAWAHARLAL Vs. MANIKANTAN

JUDGEMENT

(1.) The above Original Petition has been filed seeking the following reliefs :

(2.) Petitioner is the first defendant in a suit, pending on the file of Munsiff Court, Thrissur. That suit was filed by the first and second respondents as plaintiffs, seeking a declaration that the plaint schedule properties belong to public and the defendants have no right to alienate such properties, and for other consequential reliefs. Petitioner resisting the suit in his written statement raised a counter claim contending that the plaint properties belong to a Trust and the suit has been filed collusively with the defendants 2 to 4. A decree for declaration that the plaint properties belong to a Trust and also that defendants 2 to 4 have no right over the Trust was sought by the petitioner raising a counter claim in his written statement. Valuation of the counter claim was shown at Rs.4,00,000/- (Rupees Four lakhs only), exceeding the pecuniary jurisdiction of Munsiff Court. Petitioner, later, filed an application to amend the valuation of counter claim, for payment of fixed court fee in terms of Section 28 of the Kerala Court Fees and Suit Valuation Act, 1959. Maintainability of the counter claim being challenged by plaintiffs and other defendants, learned Munsiff considered that question preliminarily and passed Ext.P5 order rejecting the counter claim as not maintainable. Amendment requested to correct the valuation of counter claim was rejected under Ext.P6 order. Against Ext.P5 order rejecting the counter claim, petitioner preferred an appeal, and, learned First Additional District Court, Thrissur by Ext.P7 judgment dismissed that appeal. The above Original Petition is filed challenging Exts.P5 and P6 orders of the Munsiff by which the counter claim and also amendment applications were dismissed and Ext.P7 judgment by the learned District Judge, affirming Ext.P5 order of the Munsiff.

(3.) I heard the counsel on both sides. Being queried whether a regular appeal against an order rejecting a counter claim is entertainable and provided by Code, learned counsel for petitioner contended that order rejecting the counter claim is similar to an order rejecting a plaint and as such an appeal will lie. I cannot agree. Rules 6A to 6G of Order VIII of Code deal with counter claim and its entertainability in a suit filed by another. Sub rule 4 of Rule 6A provides that a counter claim shall be treated as a plaint and governed by the rules applicable to plaints. A counter claim has no independent status but as a claim raised in a written statement filed by a defendant in the suit. Only where a counter claim is entertained by the court the question raised for considering it as a plaint and, then, being governed by the rules applicable to plaint would arise. A counter claim entertained alone can have the effect of cross-suit enabling the court to pronounce a judgment thereof. The fact that a defendant has raised a counter claim in his written statement and that was rejected by the court for one reason or other as not entertainable would not enable that defendant to contend that the order of such rejection is amenable to a challenge treating such order as a decree. The question of treating a counter claim as a plaint would arise only if it is entertained and not otherwise.