Counter Claim; Pulikkipoyil Salsamath Usman Vs. Pulikkipoyil Moideen Kunhi [Kerala High Court, 30-09-2016]

Civil Procedure Code, 1908 – Order 8 Rule 6A to G – Counter Claim – Procedure for – If the defendant wants to implead any party whom he or she feels required for proper adjudication of the counter claim between the plaintiffs and the defendant, raised by the defendant in the written statement, then such party can be impleaded as additional defendant in the counter claim and not in the suit.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.RAMAKRISHNAN, J.

O.P. (Civil) No.2866 of 2014

Dated this the 30th day of September, 2016

I.A.NO. 937/2013 AND I.A.NO. 938 OF 2013 IN O.S.NO. 475/2011 OF THE THIRD ADDITIONAL SUB COURT, KOZHIKODE

PETITIONER(S)/PLAINTIFF AND PROPOSED ADDITIONAL SECOND DEFENDANT

PULIKKIPOYIL SALSAMATH USMAN, KOZHIKKODE AND ANR.

BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN

RESPONDENT(S)/DEFENDANTS AND PROPOSED ADDL. THIRD DEFENDANT

PULIKKIPOYIL MOIDEEN KUNHI, KOZHIKKODE AND ANR.

R1 & R2 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH

JUDGMENT

The defendant and her minor daughter in O.S.475/2011 on the file of the 3 rd Additional Sub Court, Kozhikode have filed this petition challenging Ext.P7 and P8 orders passed by the court below under

Article 227 of the Constitution of India

2. Respondents 1 and 2 herein filed Ext.P1 suit as O.S.475/2011 on the file of the 3 rd Additional Sub Court for recovery of an amount of 12,28,099/- from the defendant, who is the first petitioner here. It is alleged in the petition that the first petitioner herein is the widow of their deceased son Usman @ Mujeeb. Apart from the plaintiffs and the defendant in the suit, as per muslim law his children Shana Sherin and Shamna Thasnim are the legal heirs of the deceased Usman. Out of the female children of Usman, Shana Sherim died on 13.10.2008 and as per muslim law, her estate will devolve on the first plaintiff and the defendant and her sister Shamna Thasnim as her legal heirs. The first plaintiff is entitled to get 68/243 share, 2 nd plaintiff is entitled to get 36/243 share and the remaining shares will devolve on the defendant and her daughter Shamna Thasnim. The plaintiffs have released their right in the immovable properties which they inherited on the death of Usman in favour of their son Basheer. The defendant and her daughter are the co-owners of that property. Usman had taken a policy with life insurance corporation and bajaj alliance and he had shown his wife namely the defendant as his nominee. On the death of Usman, the defendant had collected the amounts with the consent of the plaintiffs and she had collected 21,20,808/- from life insurance corporation and 8,16,000/- from Bajaj Alliance insurance. But she had not paid the share due to the plaintiffs. Though they have sent a notice demanding the amount, she had sent a reply with false allegations. The plaintiffs are jointly entitled to get 12,56,905/- being their share of 104/243 in the amount, which the defendant is liable to pay. Since she did not pay the amount, the present suit has been filed by the plaintiffs for realisation of the amount.

3. The defendant who is the first petitioner herein filed Ext.P2 written statement admitting the relationship and also devolution of right on the death of her husband Usman @ Mujeeb and also receipt of the amount due under the policies in the name of Usman from life insurance corporation as well as Bajaj Alliance insurance, but submitted that the amount claimed is not correct. Certain amounts have been spent for the purpose of discharging the liability of deceased Usman @ Mujeeb. She had also raised a counter claim for partition of counter claim A schedule properties, which belonged to her late husband Usman @ Mujeeb and also claimed set off in respect of the amount used by her from the amount due to Usman @ Mujeeb for discharge of his liabilities. The respondents filed Ext.P9 replication to the counter claim which was produced along with I.A.1132/16 by the petitioners wherein they have stated that the immovable property need not be included in the suit and they have released their undivided share in the counter claim A schedule property in favour of their son Basheer, who is a necessary party to the proceedings. They have also denied that deceased had any liabilities which the counter claim plaintiff had discharged and they have no liability to contribute anything to the same. Further the valuation shown is not proper and the court fee paid is also not correct. On the basis of the replications, plaintiff filed I.A.937/13 to implead her daughter Shamna Nasnim, minor represented by the first petitioner and Pulickapoyil Basheer as additional defendants 2 and 3 in the suit and also filed I.A.938/2013 to appoint the defendant who is the first petitioner herein as the guardian of the proposed 2 nd defendant, who is a minor. The respondent filed counter to the same stating that in their suit 3 rd parties cannot be impleaded and they prayed for dismissal of the applications. The court below had by impugned Ext.P7 and P8 orders dismissed those application. Aggrieved by the same, the present petition has been filed by the petitioners, who are the O.P. (Civil) No.2866 of 2014 4 petitioners in those applications before the court below.

4. Heard Sri. S. Kannan, counsel representing Sri. Firoz K.M, counsel for the petitioners and Sri.V.V. Surendran, counsel appearing for the respondents.

5. Learned counsel appearing for the petitioners submitted that the court below was not justified in dismissing the application for impleading additional defendants and also for appointing the first petitioner as guardian of the second petitioner in the counter claim. The court below had not understood the principles behind filing of counter claim. If there are other cause of action which arose for the defendant against the plaintiffs, the defendant can raise a counter claim against the plaintiffs. It need not necessarily be on the basis of the same cause of action on which the plaintiffs had laid the claim against the defendant. It is also not necessary that counter claim can be made only in respect of money claim and not in respect of other subject matter as well. The intention behind raising counter claim is to avoid multiplicity of suits between the same parties. If at all the court below felt that they cannot be impleaded as defendants in the plaint, they can be permitted to be impleaded as defendants in the counter claim as counter claim is also to be treated as plaint for the purpose of considering the question involved in the counter claim between the parties. He had relied on the decision reported in