Prasanth vs Jessy Sam

Type Court Judgment Court Kerala Decided Jan 14, 2022

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https://sooperkanoon.com/case/1486009

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Citation: sooperkanoon.com/1486009
Court: Kerala High Court
Judge: Honourable Mr. Justice a. Badharudeen
Decided On: Jan 14, 2022
Case Number: OP(C)/3670/2017

Parties & Advocates

Appellant / Petitioner

Prasanth

Respondent

Jessy Sam

Excerpt

.....another suit and therefore, without prejudice to the right of the second defendant to agitate his grievance in the same suit, on merits, this original petition can be dismissed untrammeled by the observations in ext.p16 order. this prayer, in fact, not opposed from the other side except the learned counsel for respondents 2 and 3. in view of the above facts, this original petition is dismissed with liberty to the petitioner to contest the fresh suit filed by the second defendant on merits and the said suit shall be decided untrammeled by the observations in ext.p16 order in i.a. no.1797/2017 in o.s.no.2028/2008. it is not in dispute that when right to sue survives, a party can go with a suit and such independent right is always available. true that, an attempt made by the petitioner to put up this by way of counter-claim is neglacted, simply for the reason that counter-claim between co-defendants is not permissible. thus objection raised by the learned counsel for respondents 1 and 2 also is of no implication. sd/- a. badharudeen judge aj appendix of op(c) 3670/2017 petitioner exhibits exhibit p1 true copy of plaint in o.s 2028/2008 on the file of principal munsiff court, thrissur. exhibit p2 true copy of the written statement in o.s court, thrissur. exhibit p3 true copy of the written statementsubmitted by defendants 3 and 4 in o.s no.2028/2008 on the file of principal munsiff court, thrissur. exhibit p4 true copy of the additional written statement submitted by the 3rd and 4th defendants in o.s 2028/2008 on the file of the principal munsiff court, thrissur. exhibit p5 true copy of report of the advocate commissioner along with the sketch submitted in o.s 2028/2008 on t he file of principal munsiff court, thrissur.exhibit p6 true copy of order dated 20.7.2016 in i.a munsiff court, thrissur. exhibit p7 true copy of order in i.a 10904/2012 in o.s 2028/2008 on the file of the exhibit p8 true copy of judgment in o.s 2105/86 on the file of munsiff court,.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943 AGAINST THE JUDGMENT IN OS 2028/2008 OF PRINCIPAL MUNSIFF COURT,THRISSUR PETITIONER: PRASANTH AGED 46 YEARS AGED 46 YEARS, S/O PARAKKAL PARAMESWARAN,PULLZHI VILLAGE, DESOM, THRISSUR TALUK,THRISSUR DISTRICT. BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.S.R.NEETHU RAJ SMT.R.RAJITHA SMT.RASHIDA CHEMMENAMPALLY RESPONDENTS: 1 JESSY SAM W/O THARAYIL SAM SAKARIAS, KODANNUR VILLAGE,THRISSUR TALUK, THRISSUR DISTRICT, 680563
2 MADHAVAN S/O LATE. KARAYAMPARAMBIL VELAYUDHAN, PULLZHI VILLAGE & DESOM, THRISSUR TALUK, THRISSUR DISTRICT.680012. 3 SIVARAMAN S/O LATE. KARAYAMPARAMBIL VELAYUDHAN,PULLZHI VILLAGE &DESOM, THRISSUR TALUK, THRISSUR DISTRICT.680012 BY ADVS. SRI.DILIP J. AKKARA SRI.G.SREEKUMAR (CHELUR) SRI.G.SREEKUMAR CHELUR THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

This original petition has been filed challenging Ext.P16

order whereby the counter claim filed by the defendants against

the co-defendants has been dismissed. It is submitted by the learned Counsel for the petitioner that, now the second defendant instituted another suit and therefore, without prejudice to the right of the second defendant to agitate his grievance in the same suit, on merits, this original petition can be dismissed untrammeled by the observations in Ext.P16 order. This prayer, in fact, not opposed from the other side except the learned Counsel for respondents 2 and 3. In view of the above facts, this original petition is dismissed with liberty to the petitioner to contest the fresh suit filed by the second defendant on merits and the said suit shall be decided untrammeled by the observations in Ext.P16 order in I.A. No.1797/2017 in O.S.No.2028/2008. It is not in dispute that when right to sue survives, a party can go with a suit and such independent right is always available. True that, an attempt made by the petitioner to put up this by way of counter-claim is neglacted, simply for the reason that counter-claim between co-defendants is not permissible. Thus objection raised by the learned counsel for respondents 1 and 2 also is of no implication. Sd/- A. BADHARUDEEN JUDGE AJ APPENDIX OF OP(C) 3670/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF PLAINT IN O.S 2028/2008 ON THE FILE OF PRINCIPAL MUNSIFF COURT, THRISSUR. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S COURT, THRISSUR. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT

SUBMITTED BY DEFENDANTS 3 AND 4 IN O.S NO.2028/2008 ON THE FILE OF PRINCIPAL MUNSIFF COURT, THRISSUR. EXHIBIT P4 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT SUBMITTED BY THE 3RD AND 4TH DEFENDANTS IN O.S 2028/2008 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. EXHIBIT P5 TRUE COPY OF REPORT OF THE ADVOCATE COMMISSIONER ALONG WITH THE SKETCH SUBMITTED IN O.S 2028/2008 ON T HE FILE OF PRINCIPAL MUNSIFF COURT, THRISSUR.

EXHIBIT P6 TRUE COPY OF ORDER DATED 20.7.2016 IN I.A MUNSIFF COURT, THRISSUR. EXHIBIT P7 TRUE COPY OF ORDER IN I.A 10904/2012 IN O.S 2028/2008 ON THE FILE OF THE EXHIBIT P8 TRUE COPY OF JUDGMENT IN O.S 2105/86 ON THE FILE OF MUNSIFF COURT, THRISSUR. EXHIBIT P9 TRUE COPY OF REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S 2105/86 ON THE FILE OF MUNSIFF COURT, THRISSUR. EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 5.7.2017 IN OP(C) 3080/16 OF THIS HON'BLE COURT. EXHIBIT P11 TRUE COPY OF ORDER DATED 14.9.17 IN R.P COURT. EXHIBIT P12 TRUE COPY OF REPORT AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 31.10.17 IN O.S 2028/08 ON THE FILE OF EXHIBIT P13 TRUE COPY OF REPORT AND PLAN DATED 21.11.17 IN O.S 2028/17 ON THE FILE OF EXHIBIT P14 TRUE COPY OF I.A 17773/17 IN O.S 2028/08 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, THRISSUR. EXHIBIT P15 TRUE COPY OF THE ORDER DATED 7.12.17 IN I.A 17773/2017 IN O.S 2028/2008 ON THE FILE OF PRINCIPAL MUNSIFF COURT, THRISSUR. EXHIBIT P16 TRUE COPY OF THE ORDER DATED 7.12.17 IN I.A 17971/17 IN O.S 2028/08 ON THE FILE OF PRINCIPAL MUNSIFF COURT, THRISSUR. RESPONDENT EXHIBITS EXHIBIT R1 PHOTOCOPY OF TAX RECEIPT OF PETITIONER'S PROPERTY DATED 23-6-86 ISSUED BY VILLAGE OFFICER PULLAZHI VILLAGE

Same Court & Year Kerala · 2022 Same Parties Prasanth vs Jessy Sam Same Judge Honourable Mr. Justice a. Badharudeen