SUKHALAL Vs. MUNSIFF CHERTHALLA

JUDGEMENT

(1.) This is a petition under Art.227 of the Constitution of India. Challenge is against Ext. P8 judgment, Ext. P9 decree and Ext. P10 order directing delivery. Ext. P8 is a judgment in a counter claim filed by the 3rd respondent in a suit filed by the petitioner as O.S. 807/91 in the Munsiff Court, Cherthala. The petitioner remained ex parte whereas the defendant filed affidavit in support of the counter claim. Accordingly, a judgment was rendered in the counter claim allowing the 3rd respondent to recover item No. 2 shed scheduled in the counter claim and Rs. 850/- with mesne profit at the rate of Rs. 300/- per annum from the date of counter claim till realisation with 6% interest. A decree was drawn in terms of the judgment as per Ext. P9. In execution thereof, as per Ext. P10 order, the petitioner was directed to deliver the said shed to the 3rd respondent overruling the objection that he had filed an application to set aside the ex parte decree.

(2.) The petitioner is a tenant under the 3rd respondent company who had initiated proceedings to evict the petitioner as R.C.P. 29/87 in the Rent Control Court, Cherthala, Alleging that the 3rd respondent is making hasty steps to evict the petitioner forcibly from the plaint schedule building and attached shed therein, the petitioner instituted the suit for a permanent injunction restraining from evicting him from the plaint schedule building and from its premises forcibly. The 3rd respondent filed Ext. P2 written statement on 18.10.91. It is stated in Para.13 thereof that "Today I have filed a petition in this case under O.8 R.6A, O.7A R.1, O.1 R.10 and S.151 of CPC against the plaintiff and Sri. Rajeeva Panicker for recovery of the shed referred to in this suit." Ext. P3 is that counter claim filed by the 3rd respondent wherein the petitioner is one among the counter petitioners along with one Rajeeva Panicker alleging that without the knowledge of the 3rd respondent landlord the petitioner had inducted the said Rajeeva Panicker as sub lessee or by assignment of lease. Ext. P3 counter claim was also filed on 18.10.91 along with the written statement. During the trial, the petitioner remained ex parte, whereas the counter claim was pursued by the 3rd respondent. That resulted in Ext. P8 judgment, Ext. P9 decree and Ext. P10 order in execution directing delivery of the shed mentioned in Ext. P3 counter claim.

(3.) Instead of appealing against Exts.P8 and P9, the petitioner has approached this court under Art.227 of the Constitution alleging that Ext. P8 judgment and Ext. P9 decree are "totally devoid of jurisdiction and beyond the bounds of respondent No. 1" namely the Principal Munsiff, Cherthala. It is submitted that even if the petitioner had remained ex parte, the 1st respondent ought to have applied his mind to the facts and the question of law involved in the case. The petitioner submits that Ext. P3 is not a counter claim as contemplated in O.8 R.6A of the CPC. The petitioner further submits that "the so called counter claim is not in respect of any of plaint items and against the claim of plaintiff, but for eviction on the ground of alleged trespass on item No. 2 Scheduled to Ext. P3". He further submits that "since the counter claim contemplated under law is against the claim of the plaintiff, another item of property ought not to have been allowed to be brought in and relief granted in respect of the same".