VASUDEVAN RADHAKRISHNAN Vs. VASUDEVAN ACHARI

JUDGEMENT

(1.) The plaintiff in a suit for injunction is the petitioner in this Writ Petition. The challenge in this Writ Petition is directed against the order passed by the learned Additional Munsiff, Nedumangad in I.A.No. 2646/2005 accepting a counter claim filed by the respondent which was filed subsequent to the filing of the written statement. The petitioner filed O.S.No. 348/2005 against the respondent landlord for a decree of permanent prohibitory injunction to restrain the landlord from forcibly evicting the petitioner from the plaint schedule building. An exparte order of temporary injunction was passed which is still in force. The respondent filed a written statement raising various contentions. In the written statement he raised a counter claim also. The learned Munsiff accepted that counter claim. Thereafter the petitioner filed I.ANo. 264672005 under Order XLVII Rule 1 of Civil Procedure Code to review that order. He also filed I.A.No. 2552/2005 to restrain the landlord from disconnecting the electricity connection. The learned Munsiff allowed I.A.No. 2552/2005 and the landlord was restrained by an injunction from forcibly evicting the petitioner from the saw mill and also from disconnecting the power supply and interfering with the functioning of the saw mill. The prayer to review the order by which the court below accepted the counter claim was rejected. This Writ Petition is filed challenging that part of the order by which the court below dismissed the review application.

(2.) Shri R.S. Kalkura, the learned Counsel appearing for the petitioner has argued that the court below misapplied the law on the point and accepted the counter claim. It is argued that the averments in the written statement would show that the claim which was raised as a counter claim in the written statement arose long after the filing of the suit and as such the plea ought not to have been allowed to be raised in the written statement. It is also argued that the written statement itself was filed after the expiry of the statutory period without raising any counter claim. According to the petitioner the court below ought not have accepted the counter claim raised by way of filing a separate application after the filing of the written statement.

(3.) The learned Counsel appearing for the respondent has argued that the written statement was filed within the time allowed by law, but, the counter claim was raised by way of a separate petition subsequent to the filing of the written statement. It is argued that there is no bar in raising a counter claim separately after filing the written statement. It is argued that the contention that the written statement was not filed within the time allowed by law is not correct.