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N. THANKAPPAN, KOTTAKKAKATHU VEEDU versus AJAYAKUMAR, S/O. PEETHAMBARAN NAIR

High Court of Kerala

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N. THANKAPPAN, KOTTAKKAKATHU VEEDU v. AJAYAKUMAR, S/O. PEETHAMBARAN NAIR - WP(C) No. 28806 of 2005(D) [2007] RD-KL 12365 (6 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 28806 of 2005(D)

1. N. THANKAPPAN, KOTTAKKAKATHU VEEDU,
... Petitioner

2. R. RAGHAVAN, S/O. ACHUTHAN,

3. M. HAMEEDKUTTY, KOICHERY VEEDU,

Vs

1. AJAYAKUMAR, S/O. PEETHAMBARAN NAIR,
... Respondent

For Petitioner :SRI.N.K.SUBRAMANIAN

For Respondent :SRI.K.ABDUL JAWAD

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :06/07/2007

O R D E R

PIUS C. KURIAKOSE,J.


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W.P.(C) No.28806 of 2005
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Dated: 6th July, 2007



JUDGMENT

In a suit for fixation of boundary the defendants raised a counter claim. The counter claim was that a decree of declaration be passed in respect of the property scheduled to the counter claim. The learned Munsiff under Ext.P4 impugned order dismissed the application for leave on the ground that it is highly belated and also that there was an earlier suit between the parties in respect of the very same relief sought for. However ultimately the learned Munsiff observed that the plaintiff will have the liberty to file a fresh suit if the cause of action survives. Even though Mr.N.K.Subramanian, learned counsel for the petitioners would cite various decisions before me to support his argument that the court has power to admit even counter claims which are not filed along with the written statement, I am of the view that the question of limitation of a counter claim will have to be decided on the basis of Section 3(2) of the Indian Limitation Act. In other words, the question whether the counter claim is barred will have to be decided with reference to the date on which counter claim was filed. Under these circumstances, I do not propose to interfere with Ext.P4 order. But at the same time, I permit the petitioner to file W.P.C.No.28806/05 - 2 - a fresh suit within three weeks of receiving a copy of this judgment. If it is so done, the time taken by the petitioner during the period from 10.12.2004 (the date on which the counter claim was actually filed) and till the date of institution of the suit will be excluded by the court in which a fresh suit is filed under Section 14 of the Act for the purpose of limitation. It is open to that court to consider all questions arising on the basis of the pleadings raised by the respondents including the question whether the suit is barred by limitation or barred by principles of res judicata .

srd PIUS C.KURIAKOSE, JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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