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2011 DIGILAW 146 (CAL)

Amitabha Datta v. Kiran Rasaily

2011-01-31

SUBHRO KAMAL MUKHERJEE, TARUN KUMAR GUPTA

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JUDGMENT : - Subhro Kamal Mukherjee, J:- The plaintiff-appellant instituted a suit for eviction before the learned Civil Judge (Senior Division) at Siliguri, District, Darjeeling. The suit was registered as Title Suit No.24 of 2006 in the said Court. 2. The defendant entered appearance in the suit and delivered his counter-claim along with the written statement, inter alia, seeking a decree for specific performance of an oral contract. 3.The suit was valued at Rs.31, 000/- (Rupees thirty one thousand) only. The defendant, however, valued his counter-claim at Rs.5, 50,000/- (Rupees five lakh fifty thousand) only. 4. The learned Civil Judge by the impugned judgment and decree dated December 23, 2009 dismissed the suit, but the counter-claim of the defendant was decreed on contest. 5. The plaintiff has come up with this appeal before this Court. The appeal is valued at Rs.31, 000/- (Rupees thirty one thousand) only. The Additional Stamp Reporter, in his report dated May 03, 2010, expressed his doubt as to the maintainability of this appeal before this Court. Accordingly, this appeal has been listed before us for consideration as to whether the appeal is maintainable before this Court. 6. Mr. Durgadas Purakayastha, learned advocate appearing in support of this appeal, submits that as by the impugned judgment and decree, the counter-claim of the defendant valued at Rs.5, 50,000/- (Rupee five lakh fifty thousand) only has been decreed, appeal has rightly been filed before this Court. 7. Section 21(1)(a) of the Bengal, Agra and Assam Civil Courts Act, 1887, in its application to the State of West Bengal, provides that an appeal from a decree or order of the learned Civil Judge (Senior Division) shall be to the learned District Judge where the value of the original suit in which or in a proceeding arising out of which, the decree or order was made did not exceed one lakh and fifty thousand rupees. Under Section 21(1)(b) of the said Act the aggrieved party can appeal to the High Court if the value of the original suit in which or in a proceeding arising out of which the decree or order was made exceeds one lakh fifty thousand rupees. (emphasis supplied) 8. Mr. Under Section 21(1)(b) of the said Act the aggrieved party can appeal to the High Court if the value of the original suit in which or in a proceeding arising out of which the decree or order was made exceeds one lakh fifty thousand rupees. (emphasis supplied) 8. Mr. Purakayastha strenuously argues, with reference to provisions of rules 8A to Rule 8G of Order VIII of the Code of Civil Procedure, that as the suit was decreed on counter-claim valued at five lakh fifty thousand rupees, the appeal shall lie before this Court inasmuch as a counter-claim is, in substance, a cross-suit and under the provisions of rule 6D of Order VII of the said Code, if the suit is dis-continued, dismissed or stayed the counter-claim may nevertheless be proceeded with independently. Mr. Purakayastha submits that under Section 21(1)(a) of the said Act, this appeal is maintainable before this Court as the decree is made in a proceeding, that is, the counter-claim (cross-suit). 9. We are of the considered opinion that the expression proceeding referred to in Section 21(1)(a) of the said Act is a proceeding similar to those in a regular suit and not a proceeding arising out of a suit. 10. A Full Bench of this Court in the case of Ijjatulla Bhuyan v. Chandra Mohan Banerjee, reported in (1907) I.L.R. XXXIV Calcutta 954, holds, approving Gulab Khan v. Abdul Wahab Khan reported in (1904) I.L.R. XXXI Calcutta 365, that where a plaintiff definitely fixes a certain sum as the amount of his claim, this must be considered as the value of the original suit and the appeal will lie accordingly. 11. Therefore, the forum of appeal must be determined according to the value of the original suit in which the decree was made. For determination of the forum of the appeal the valuation of the counter claim is not relevant. The forum of the appeal shall be determined according to the value of the original suit. In the instant case, the value of the original suit was Rs.31, 000/- (Rupees thirty one thousand) only. Therefore, the appeal lies to the learned District Judge and not to this Court. 12. The appeal is, thus, dismissed as not maintainable. However, this order of dismissal shall not prevent the appellant to approach the appropriate forum in accordance with law. 13. Therefore, the appeal lies to the learned District Judge and not to this Court. 12. The appeal is, thus, dismissed as not maintainable. However, this order of dismissal shall not prevent the appellant to approach the appropriate forum in accordance with law. 13. The office is directed to return the certified copies of the judgment and decree to the learned advocate-on-record for the appellant on his furnishing photocopies thereof. 14. We make no order as to costs. 15. Urgent xerox certified copy of this order, if applied for, be given to the learned advocates for the parties, upon compliance of all formalities.