H. Musthafa vs Abdullakutty Haji

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The petitioner (plaintiff) held a licensed shop room of 12,000 sq. ft. in a shopping mall at Palakkad under a license deed dated 26/4/2018 from the respondent (defendant) for running a supermarket. The plaintiff instituted a suit for permanent prohibitory injunction against the defendant for alleged interference with his business. The defendant filed a written statement and a counter-claim seeking mandatory injunction to eject the plaintiff on the ground of default in payment of license fee and an alleged admission by the plaintiff to vacate, and also filed IA No. 6/2024 under Order XII Rule 6 CPC. The trial court dismissed IA No. 6/2024 and directed transfer of both the suit and the counter-claim to the Commercial Court.

The Kerala High Court, in the above Original Petition and Civil Revision Petition challenging the common order of the trial court, addressed two separate issues: the correctness of dismissal of IA No. 6/2024 under Order XII Rule 6 CPC seeking a decree on admission, and the maintainability and transferability of the counter-claim to the Commercial Court under Section 15(2) of the Commercial Courts Act, 2015. The court noted that the plaintiff had categorically denied the alleged admission in Ext.A1(a) in his counter affidavit and that the power under Order XII Rule 6 is discretionary.

The judgment is framed as a Reference Order, indicating that significant questions of law arising out of the interplay between Order XII Rule 6 CPC, the maintainability of a counter-claim before a civil court when the dispute is of a commercial nature, and the applicability of Section 15(2) of the Commercial Courts Act, 2015 required authoritative determination, and the matter was accordingly referred for consideration.

Catchwords: license deed permanent prohibitory injunction counter-claim mandatory injunction Order XII Rule 6 CPC admission decree on admission Commercial Courts Act 2015 Section 15(2) transfer to commercial court maintainability of counter-claim discretionary power reference order