INDIRA BHAI Vs. MADHUSOODANAN

JUDGEMENT

(1.) The question involved in this Original Petition is whether the defendant in a suit can raise a counter - claim with respect to a cause of action which arose consequent to the amendment of the plaint, after filing written statement by the defendant.

(2.) The petitioner filed the suit for fixation of boundary against the respondent and eight others. Defendants 1, 2 and 4 to 9 filed the written statement dated 23/09/2009. According to the defendants, the suit is barred by res judicata in view of the decision in a previous litigation between the parties. An issue was raised on the question of res judicata. The defendants wanted that issue to be tried as a preliminary issue. The Trial Court held that to decide that issue evidence may be required and, therefore, it was not proper to decide the question of bar of res judicata as a preliminary issue.

(3.) The petitioner / plaintiff filed IA No. 6398 of 2010 for amendment of the plaint to correct the extent of the plaint schedule property and to add a prayer for consequential injunction. The respondent / first defendant objected to the same. But the Court below allowed the application for amendment of the plaint by the order dated 23/09/2010.