Legal Heirs Of Deceased Original Plaintiff Need Not Be Separately Impleaded In Counter Claim: Kerala High Court

The Kerala High Court recently held that legal heirs of the deceased original plaintiff need not be separately impleaded as counter claim defendants, in order for the counter claim not to stand abated. 

Justice P. Somarajan explained that a counter claim ought to be treated as a plaint and governed by the rules applicable to plaints by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C..

"Necessarily, the plaintiff/plaintiffs in the suit would stand in the status of a defendant/defendants as against the counter claim, when treated as a plaint. When the original plaintiff passed away and legal heirs were brought on record by impleadment as supplementary plaintiffs, they would stand stepped into the shoes of the original plaintiff and necessarily would acquire the character of defendants as against the counter claim raised. Hence, there is no need to implead them once again separately as counter claim defendants could be raised only against the plaintiff in the suit and that it would not be permissible to implead any other person in the suit for the purpose of counter claim," the Court explained. 

It added that if separate impleadment of the legal heirs is permitted, the same would 'alter the very scope of Rule 6A of Order VIII C.P.C.', as well as the 'very concept and the principle behind it'. 

The legal heirs of the original plaintiff in this case were impleaded as supplementary plaintiffs. A contention was subsequently raised that the counter claim would stand abated due to non-impleadment of the legal heirs of the plaintiff as counter claim defendant in the suit.

The Court elucidated that a counter-claim can be raised only against the plaintiff in the suit and that it would not be permissible to implead any other person in the suit for the purpose of counter claim. It added that a counter claim also has to be within the four corners of the suit, both pecuniary and territory, as well as always against the plaintiff, though it can be by one among the defendants or by all the defendants.

The Court thus dismissed the petition on these grounds. 

The petitioner was represented by Advocates Shyam Padman, C.M. Andrews, Boby M. Sekhar, and P.T. Mohankumar. Advocate George Zachariah Eruthickel appeared on behalf of the respondent. 

Case Title: Sholly Lookose v. V.I. Joseph

Citation: 2023 LiveLaw (Ker) 333

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