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Himachal Pradesh High Court · body

2016 DIGILAW 2589 (HP)

Kedar Singh v. HPMC Limited

2016-12-06

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma,J. - Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure, is directed against the judgment and decree dated 7.7.2005, passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P, in Civil Appeal No.56 of 2004, affirming the judgment and decree dated 18.6.2004, passed by learned Civil Judge(Senior Division), Kinnaur camp at Rampur Bushahr, H.P., in Civil Suit No. 40-1 of 1993/1994, whereby suit for recovery filed by the respondent-plaintiff was decreed and counter claim of the appellant-defendant was dismissed. 2. The brief facts of the case are that the respondent-plaintiff (hereinafter referred to as the 'plaintiff') filed a suit for recovery of Rs. 10,512.94 paise against the present appellant-defendant (hereinafter referred to as the 'defendant'), which is a body corporate limited having its principal office at Shimla and Branch at Jarol Tikker and carrying the business of grading and packing the apple and thereafter sending the same to the commission Agents. 3. In nutshell, the case of the plaintiff is that the plaintiff is carrying on the business of grading and packing of apple and sending the same to the commission Agents. The defendant had asked the plaintiff to grade and pack his apples and send the same to sale agents M/s H.K.T, Chandigarh. Accordingly, the plaintiff sent the consignment of 204 apples cases to M/s H.K.T, Chandigarh on 11.10.1990 and on account of this services rendered by the defendant to the plaintiff, an amount of Rs. 6,750.30 P. was due. The plaintiff has averred that the defendant was repeatedly asked to make the payment of aforesaid amount, but no heed was paid to the request of the plaintiff, rather defendant refused to pay the same. Since, defendant failed to make the payment in terms of the request having been made by the plaintiff, plaintiff got issued legal notice to the defendant advising him to make the payment in question. Since, the defendant failed to deposit the amount in terms of the notice having been issued by the plaintiff, plaintiff was compelled to file the suit for recovery of Rs. 10,512.94 paise. i.e. Rs. 6,750.30 paise. as principal amount and Rs. 3,762.64 paise. as interest w.e.f.11.10.1990 to 7.8.1993. 4. Since, the defendant failed to deposit the amount in terms of the notice having been issued by the plaintiff, plaintiff was compelled to file the suit for recovery of Rs. 10,512.94 paise. i.e. Rs. 6,750.30 paise. as principal amount and Rs. 3,762.64 paise. as interest w.e.f.11.10.1990 to 7.8.1993. 4. Defendant by way of filing written statement refuted the claim having been put forth on behalf of the plaintiff in its plaint and admitted that defendant had given 204 apple cases to the plaintiff for packing and grading but same were given in the month of August, 1990 and not in September, 1990. Defendant further averred that the amount on account of the services rendered by the plaintiff for grading and packing along with freight charges were to be deducted by the said M/s H.K.T, Chandigarh on the sale proceeds given to the plaintiff. Defendant further claimed that in August, 1990, the apples were being sold at the rate of Rs. 140/- to 175/- per box but due to negligence of the plaintiff, the defendant suffered a loss to the tune of Rs. 30,600/- and he is not liable to pay the suit amount nor future interest because the plaintiff cannot take advantage of his own wrong. The defendant also denied that the plaintiff has cause of action to file the suit against the defendant. 5. Plaintiff by way of replication reasserted and reaffirmed his own case as set up in the plaint and alleged that after grading and packing the apples, same were sent to M/s H.K.T, Chandigarh on 11.10.1990 strictly in terms of the instructions of the defendant. Plaintiff further denied that the defendant had suffered any loss to the tune of Rs. 30,600/- due to the negligence of the plaintiff. 6. The plaintiff further filed written statement to the counter claim filed by the defendant, whereby plaintiff stated that the counter claim made by the defendant is not maintainable in the present form because it should have been made in the written statement as provided under Order 8, Rule 1 (A) of the Code of Civil Procedure and all the documents on which he relies should have been filed with the written statement. Plaintiff further claimed that under the circumstances the counter claim is not to be disposed off by way of counter claim, but in an independent suit as provided under Order 8, Rule 6 of the Code of Civil Procedure. On merits, plaintiff sought rejection of the aforesaid counter claim having been filed by the defendant and termed the same to be hopelessly barred by limitation for the reasons that as per the version of the defendant the apples were handed over for grading, packing and for forwarding the same to the market in the year, 1990 and as per the record the apples were sold in October, 1990 and as such, counter claim filed by the defendant deserves to be rejected for this reason also. 7. On the pleadings of the parties, the learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled for the decree of Rs.10,512.94 paise along with interest as alleged? OPP 2. Whether the plaintiff has no cause of action? OPD. 2A. Whether the defendant is entitled for the recovery of Rs.30,600/- from the plaintiff by way of claim, as alleged? OPD. 2B. Whether the counter claim was not filed within limitation, as alleged? Onus placed upon the appellant/applicant. 2C. Whether the respondent/defendant had not complied with the provisions of Order 8, Rule 6A (4) CPC as alleged, if so, its effect? Onus placed upon the appellant/applicant. 2D. Whether the respondent/defendant did not file proper Court fee upon the counter claim, as alleged, if so, its effect? Onus placed upon the appellant/applicant. 2E. Whether the counter claim of the defendant is not maintainable in the present form, as alleged? OPP 2F. Whether the counter claim of the defendant is liable to be rejected ,as alleged in the preliminary objections Nos. 2,3 and 7 of the written statement? OPP. 2G. Whether the plaint qua counter claim of defendant is liable to be rejected under Order 7, Rule 11 CPC for want of cause of action, as alleged? OPP. 2H. Whether the counter claim of the defendant is barred by limitation, as alleged? OPP. 2J. whether the counter claim is hit by the provisions of Section 10 of the Carriers Act, as alleged? OPP. 3. Relief." 8. Subsequently, learned trial Court vide judgment and decree dated 18.6.2004 decreed the suit for recovery of Rs. 10,512.94 P. in favour of the plaintiff and against the defendant. OPP. 2J. whether the counter claim is hit by the provisions of Section 10 of the Carriers Act, as alleged? OPP. 3. Relief." 8. Subsequently, learned trial Court vide judgment and decree dated 18.6.2004 decreed the suit for recovery of Rs. 10,512.94 P. in favour of the plaintiff and against the defendant. However, counter claim of the defendant was dismissed. 9. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, whereby suit filed by the plaintiff was decreed and counter claim having been preferred by the appellant defendant was rejected, appellant-defendant preferred a composite appeal before the learned District Judge Kinnaur at Rampur Bushahr H.P, which came to be registered as Civil Appeal No.56 of 2006. However, fact remains that aforesaid appeal having been preferred by the appellant-defendant was dismissed as a result of which, judgment and decree passed by the learned trial Court came to be upheld. In the aforesaid background, the present appellant-defendant filed this Regular Second Appeal before this Court praying therein for decreeing the counter claim after setting aside and quashing the judgment and decree passed by the learned Courts below. 10. This second appeal was admitted on the following substantial question of law: "(1) Whether the two courts below have erred in dismissing the counter claim, on the ground that the counter claim when preferred, had become barred by time." 11. At this stage, it may be noticed that on 7th November, 2016 matter was listed before this Court, and attention of Mr. G.D.Verma, Senior Advocate, representing the appellant-defendant was invited towards the judgment passed by Hon'ble Apex Court in Rajni Rani and another v. Khairati Lal and Others, (2015) 2 SCC 682 and Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and others, AIR 1964 SC 11 , which was further followed by this Court while dismissing RSA No.293 of 2006, titled as Piar Chand and Others v. Ranjeet Singh and Others, wherein Hon'ble Apex Court has held that while dismissing the counter claim, Court may or may not draw a formal decree but if rights are finally adjudicated, it would assume the status of a decree and same needs to be laid challenge, if any, by way of filing separate appeal affixing required court fee. 12. In view of aforesaid law having been brought to the notice of Mr. 12. In view of aforesaid law having been brought to the notice of Mr. G.D. Verma, learned Senior Advocate, representing the appellant-defendant, Mr. Verma, sought time to go through the same. Thereafter, today when matter was listed before this Court i.e. on 6.12.2016, this Court in view of aforesaid law having been laid down by the Hon'ble Apex Court deemed it fit to frame additional substantial question of law for proper adjudication of the case at hand. The additional substantial question of law is as under:- 1. "Whether the learned First Appellate Court has erred in entertaining the composite appeal having been preferred by the appellant-defendant against the judgment and decree passed by learned trial Court decreeing the suit of the plaintiff and dismissing the counter claim preferred by the defendant that too without affixing separate/requisite court fee as far as counter claim is concerned. 13. Mr. G.D. Verma, learned Senior Advocate, representing the appellant-respondent vehemently argued that the judgments passed by the both the Courts below are not sustainable as the same are not based upon the correct appreciation of the evidence adduced on record by the respective parties and as such, same deserves to be quashed and set-aside. Mr. Verma, further contended that bare perusal of the of the judgments passed by both the Courts below suggests that evidence led on record by the appellant-defendant has not been read in its right perspective and as such, great prejudice has been caused to the appellant-defendant against whom decree for recovery of an amount of Rs. 10,512.95 paise has been passed. He further contended that Courts below have misconstrued the evidence on the receipt of dispatch of the apple for sale by the appellant-defendant and wrongly held that there was no negligence on the part of the plaintiff-respondent, who admittedly delayed the consignment, as a result of which, appellant-defendant suffered huge loss. 14. Mr. Verma, further contended that both the Courts below dismissed the counter claim of the appellant-defendant on very flimsy ground and the Courts below while dismissing the counter claim of the appellant-defendant miserably failed to take note of principals of equity, especially when it stood proved on record that appellant-defendant suffered loss due to delay in sending consignment by the plaintiff-respondent. Verma, further contended that both the Courts below dismissed the counter claim of the appellant-defendant on very flimsy ground and the Courts below while dismissing the counter claim of the appellant-defendant miserably failed to take note of principals of equity, especially when it stood proved on record that appellant-defendant suffered loss due to delay in sending consignment by the plaintiff-respondent. He further argued that since there was sheer negligence on the part of the respondent-plaintiff, appellant-defendant suffered huge loss and he was required to be compensated by the respondent-plaintiff as claimed in the counter claim. 15. Mr. Verma, while making his submission qua the additional issue having been framed by this Court, contended that genuine and legitimate claim of the appellant-defendant cannot be allowed to be defeated on mere technicalities and this Court has wide power to ignore such technicalities and can proceed ahead to decide the matter on the basis of the evidence adduced on record by the respective parties to do substantive justice in the matter. Mr. Verma, further claimed that the learned trial Court dismissed the counter claim of the appellant-defendant and appellant-defendant rightly preferred composite appeal against the same before the learned District Judge laying challenge therein to the composite decree passed in favour of the plaintiff as well as dismissal of his counter claim and as such, there is no illegality and infirmity in the judgment passed by the learned first appellate Court. He further contended that no appeal, if any, could be filed without there being any decree and as such, appellant defendant had no option but to file composite appeal, whereby suit of the plaintiff was decreed and counter claim of the appellant-defendant was dismissed. In the aforesaid background, Mr. G.D. Verma, strenuously argued that the counter claim filed by the appellant-defendant deserve to be decreed after setting aside the judgment and decree passed by the Courts below. In support of his contention Mr. Verma, also placed reliance on the judgments of Hon'ble Apex Court in Narhari and others v. Shanker and others, AIR 1953 S.C. 419 , Gangadhar and another v. Shri Raj Kumar, AIR (1983) SC1202, Tamilnad Mercantile Bank Shareholders welfare Association v. S.C. Sekar and others (2009) 2 SCC 784 and B.S. Sheshagiri Setty and others v. State of Karnataka and others (2016)2 SCC 123 . 16. Mr. 16. Mr. P.D. Nanda, learned counsel appearing For the Respondent-plaintiff, supported the judgment passed by the learned first appellate Court. Mr. Nanda, vehemently argued that bare perusal of the judgment passed by the learned first appellate Court suggests that the same is based upon the correct appreciation of the evidence adduced on record by the respective parties and as such, there is no scope of interference, whatsoever, by this Court especially in view of the concurrent findings of fact recorded by the Court below. He further contended that the present appeal is not maintainable in view of the law laid down by the Hon'ble Apex Court in Rajni Rani and another v. Khairati Lal and Others, (2015) 2 SCC 682 , which was further followed by this Court while passing judgment dated 16.9.2016 in RSA No. 293 of 2006. Mr. Nanda also placed reliance on the judgment of Hon'ble Apex Court in Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilala Kabrawala and others, AIR 1964 SC 11 . 17. Mr. Nanda, while concluding his arguments, further contended that apart from above, this Court has very limited power while exercising power under Section 100 CPC to re-appreciate the evidence and as such, he placed reliance on the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others v. Ranganath and Others, (2015) 4 SCC 264 , herein below:- "16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the Courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." 18. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the Courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." 18. I have heard learned counsel for the parties and have gone through the record of the case. 19. Keeping in view the specific objection with regard to maintainability having been raised by the respondent-plaintiff in the light of the judgment passed by the Hon'ble Apex Court, this Court deems it fit to take additional substantial question of law framed by this Court at first instance for adjudication. 20. Perusal of the counter claim filed on behalf of the appellant-defendant suggests that appellant-defendant while filing written statement asserted counter claim of Rs. 30,600/- but fact remains that no requisite fee was paid on the aforesaid counter claim. The plaintiff-respondent denied the aforesaid counter claim of the appellant-defendant terming the same to be false and claimed that there was no negligence on the part of the plaintiff-respondent as claimed in the counter claim. 21. Careful perusal of the trial court record further suggests that plaintiff-respondent refuted the aforesaid counter claim of the appellant-defendant by way of replication as well as by filing separate written statement. However, the fact remains that learned trial Court after framing issues, as have been reproduced above, decreed the suit of the plaintiff and dismissed the cross-objection having been filed by the appellant-defendant. Operative part of the judgment and decree passed by the learned trial Court clearly suggests that the learned trial Court decreed the suit of the plaintiff-respondent for an amount of Rs. 10,512.94 paise, whereas dismissed the counter claim of Rs. 30,600/- preferred on behalf of the appellant-defendant. Learned trial Court on the basis of the judgment and decree, as referred above, also drawn decree for recovery in terms of Order 20, Rule 9 and 10 CPC specifically ordering therein that the suit of the plaintiff for recovery of Rs. 10,512.94 paise is decreed and counter claim of the appellant-defendant is dismissed. Careful perusal of the decree sheet available on record suggests that decree of Rs. 10,512.94 paise was passed in favour of the plaintiff-respondent and against the appellant-defendant. 22. 10,512.94 paise is decreed and counter claim of the appellant-defendant is dismissed. Careful perusal of the decree sheet available on record suggests that decree of Rs. 10,512.94 paise was passed in favour of the plaintiff-respondent and against the appellant-defendant. 22. Careful perusal of the decree, as referred, here-in-above, suggests that it also stands mentioned, " it is ordered that the suit of the plaintiff is decreed for sum of Rs. 10,512.94 paise and counter claim of the defendant is dismissed". Perusal of aforesaid decree prepared by the learned trial Court while decreeing the suit and rejecting the counter claim of the defendant, clearly suggests that proper decree was drawn as far as dismissal of the counter claim filed by the defendant is concerned. 23. Appellant-defendant being aggrieved with the aforesaid judgment and decree, approached the learned District Judge by way of an appeal under Section 96 CPC laying therein challenge to aforesaid judgment and decree passed by the learned trial Court. At this stage, it would be appropriate to reproduce cause title/head note of appeal preferred by the appellant-defendant before the learned District Judge, which reads thus:- "Appeal against the judgment and decree dated 18.6.2004 passed by the learned Civil Judge (Senior Division), Kinnaur camp at Rampur Bushahr in Civil Suit No.40-1 of 93/94 by which the counter claim of the respondent/defendant has been disallowed and the civil suit of the respondent/plaintiff has been decreed." 24. Careful perusal of aforesaid cause title as well as relief claimed in the appeal clearly suggests that appellant-defendant before the learned First appellate Court prayed that his counter claim may be decreed against the respondent-plaintiff and there is no prayer, if any, for setting aside the judgment and decree passed by the learned trial Court, whereby suit for recovery preferred on behalf of the plaintiff-respondent was decreed while dismissing the counter claim of the appellant-defendant. 25. Before adverting to the submissions having been made on behalf of the learned counsel representing both the parties, it would be appropriate to refer to relevant provisions of law applicable in the present case i.e. Order 8, Rule 6A : "6A. Counter claim by defendant. 25. Before adverting to the submissions having been made on behalf of the learned counsel representing both the parties, it would be appropriate to refer to relevant provisions of law applicable in the present case i.e. Order 8, Rule 6A : "6A. Counter claim by defendant. - (1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not: Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court. (2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court. (4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints." 26. Aforesaid provisions of law entitles defendant in a suit to set up counter claim against the claim of the plaintiff in respect of cause of action accruing to him against the plaintiff either before or after filing the suit, but definitely before defendant files his defence or before the time stipulated for delivering the defence is expired. Needless to say that aforesaid right of filing counter claim is in addition to his right of pleading as set up in Rule 6. Further perusal of aforesaid provisions of law suggests that counter claim, if any, filed on behalf of the defendant would be treated as a plaint and same would be governed by Rules applicable to the plaint. Needless to say that aforesaid right of filing counter claim is in addition to his right of pleading as set up in Rule 6. Further perusal of aforesaid provisions of law suggests that counter claim, if any, filed on behalf of the defendant would be treated as a plaint and same would be governed by Rules applicable to the plaint. Similarly, counter claims filed on behalf of the defendant would have same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and the counter claim. 27. Similarly, Rule 6A(3) enables the plaintiff to file a written statement, if any, to the counter claim filed by the defendant. Rule 6D specifically provides that in case suit of the plaintiff is stayed, discontinued or dismissed, the counter claim filed on behalf of the defendant would nevertheless be proceeded with. 28. Similarly, Rule 6E provides that if plaintiff fails to file reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him/her, or make such order in relation to the counter-claim as it deems fit. It would be relevant here to refer to Order 8, Rule 6F : "6F. Relief to defendant where counterclaim succeeds. - Where in any suit a set-off or counter-claim is established as a defence against the plaintiffs claim and any balance is found due to the plaintiff or the defendant, as the case may be , the Court may give judgment to the party entitled to such balance." 29. Perusal of aforesaid Order 8, Rule 6F clearly suggests that where in any suit a set-off or counter claim is established as a defence against the plaintiffs' claim and any balance is found due to the plaintiff or the defendant, Court may give judgment to the party entitled to such balance. Further perusal of Order 8, Rule 6G suggests that no pleadings, if any, subsequent to the written statement filed by a defendant other than by way of defence to set up a claim can be presented except with the leave of Court. 30. Further perusal of Order 8, Rule 6G suggests that no pleadings, if any, subsequent to the written statement filed by a defendant other than by way of defence to set up a claim can be presented except with the leave of Court. 30. Under Order 8, Rule 10 when any party fails to file written statement as required under rule 1 or rule 9 within the stipulated time, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. 31. Careful perusal of aforesaid provisions of law clearly suggests that counter claim, if any, preferred by the defendant in the suit is in nature of cross suit and even if suit is dismissed counter claim would remain alive for adjudication. Since counter claim is in nature of cross suit, defendant is required to pay the requisite court fee on the valuation of counter claim. It has been specifically provided in the aforesaid provisions that the plaintiff is obliged to file a written statement qua counter claim and in case of default court can pronounce the judgment against the plaintiff in relation to the counter claim put forth by the defendant as it has an independent status. As per Rule 6A(2), the Court is required to pronounce a final judgment in the same suit both on the original claim and also on the counter-claim. 32. In the present case, as clearly emerged from the judgment passed by the learned trial Court, learned trial Court effectively determined the rights of the parties on the basis of counter claim as well as written statement thereto filed by the respective parties and as such it attained the status of decree. It would be profitable here to reproduce definition of the term 'decree' as contained in Section 2(2) of CPC:- "2.(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [1][ * * *] Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;" 33. Close scrutiny of aforesaid definition of "decree" clearly suggests that there should be formal expression of adjudication by the Court while determining the rights of the parties with regard to controversy in the suit, which would also include the rejection of plaint. Similarly, determination should be conclusive determination resulting in a formal expression of the adjudication. It is settled principle that once the matter in controversy has received judicial determination, the suit results in a decree, either in favour of the plaintiff or in favour of the defendant. 34. In the present case, as emerged from the judgment passed by the learned trial Court that the counter claim preferred on behalf of the appellant-defendant were dismissed on the ground of limitation. Learned trial Court concluded that defendant was required to file counter claim within the period of three years i.e. October, 1990 when he had handed over consignment of apple to the plaintiff. Learned trial Court further concluded that the limitation to file the same stood expired in October, 1993 and as such, counter claim having been filed by the defendant was dismissed being hopelessly barred by limitation. Aforesaid view having been taken by the learned trial Court was further upheld by the learned first appellate Court, meaning thereby that counter claim having been filed by the appellant-defendant was duly adjudicated and decided on merits by the learned trial court. At the cost of repetition, it is once again stated that by way of counter claim appellant-defendant had claimed an amount of Rs. 30,600/- which was negatived by the trial Court. 35. At the cost of repetition, it is once again stated that by way of counter claim appellant-defendant had claimed an amount of Rs. 30,600/- which was negatived by the trial Court. 35. In the aforesaid background, this Court while examining the statements having been made on behalf of the counsel representing the respondent-plaintiff, finds sufficient force in the arguments raised on behalf of respondent-plaintiff that learned first appellate Court could not have entertained composite appeal as preferred in the present case by the appellant-defendant specifically laying challenge therein to the judgment and decree passed by the Court, whereby the suit was decreed and counter claim was dismissed. 36. When learned trial Court dismissed the counter claim specifically holding the same to be time barred, meaning thereby there was formal expression of adjudication as far as counter claim is concerned. Definition of "decree" clearly suggests that there has to be formal expression of adjudication. Accordingly, in the present case, as is seen from the judgment passed by the learned trial Court, learned trial Court while rejecting the counter claim specifically observed that no counter claim could be entertained being hopelessly time barred. Admittedly, in the present case, learned trial Court has not drawn formal decree while rejecting counter claim filed by defendant, but if the judgment in its entirety passed by the Court is seen, it clearly suggests that rights of the parties were finally adjudicated by the Court below. True, it is that counter claims are in nature of cross-suit , learned trial Court below ought to have passed separate decree specifically dismissing the counter claim of the appellant-defendant. But in the present case, where no separate decree was passed while rejecting counter claim, defendant cannot be allowed to state that since there was no formal decree passed by trial Court, there was no occasion for him to file separate appeal after paying requisite court fee. It is well settled law that Court may or may not draw formal decree, but if by virtue of order of Court rights are finally decided/adjudicated, it would assume the status of decree. 37. In this regard, it would be appropriate to place reliance on the judgment of the Hon'ble Apex Court in Rajni Rani and Another v. Khairati Lal and Others, (2015) 2 SCC 682 , wherein the Court has held as under:- "3. 37. In this regard, it would be appropriate to place reliance on the judgment of the Hon'ble Apex Court in Rajni Rani and Another v. Khairati Lal and Others, (2015) 2 SCC 682 , wherein the Court has held as under:- "3. After the counter-claim was filed, Defendants 1 and 2 filed an application for dismissal of the counter-claim on the foundation that the same did not merit consideration as it was barred by Order 2, Rule 2 CPC. It was set forth in the application that a suit for declaration was earlier filed by the present appellants along with others against the defendants and a decree was passed in their favour on 21.9.2002 whereby it was held that the present appellants and some of the respondents were entitled to ¼th share each. The judgment and decree passed in the said suit was assailed in appeal and the appellate court modified the judgment and decree dated 21.9.2002 vide judgment dated 15.2.2003 holding that each one of them was entitled to 1/9th share and the said modification was done on the ground that the property was ancestral in nature and the sisters had their shares. After disposal of the appeal, one of the sisters filed a declaratory suit to the effect that she is the owner in possession of land in respect of 1/9th share in the suit land and in the said suit a counterclaim was filed by Defendants 12 to 14 stating that they had become owners in possession of the suit property on the basis of a properly registered Will dated 18.5.1995 executed by Jeth Ram. In the application it was set forth that the counter-claim had been filed in collusion with the plaintiff as the plea of claiming any status under the Will dated 18.5.1995 was never raised in the earlier suit. It was urged that the plea having not been raised in the earlier suit, it could not have been raised by way of a counterclaim in the second suit being barred by the principles of Order 2, Rule 2 of CPC. 4. It was urged that the plea having not been raised in the earlier suit, it could not have been raised by way of a counterclaim in the second suit being barred by the principles of Order 2, Rule 2 of CPC. 4. The learned trial Judge adverted to the lis in the first suit, the factum of not raising the plea with regard to Will in the earlier suit and came to hold that the counter-claim could not be advanced solely on the ground that the existence of the Will had come to the knowledge of the defendants only in the year 2003. Being of this view, the learned trial Judge allowed the application filed by the Defendant 1 and 2 and resultantly dismissed the counter-claim filed by the Defendant 12 to 14 vide order dated 13.10.2010. 5. The legal sub-stantiality of the aforesaid order was called in question in Civil Revision No. 900 of 2011 preferred under Article 227 of the Constitution of India wherein the High Court taking note of the previous factual background came to hold that the learned trial Judge had failed to appreciate that the Will dated 18.5.1995 executed by Jeth Ram, the father of Defendant 12 to 14, was alive at the time of adjudication of the earlier suit and hence, the said Will could not have taken aid of during his lifetime. The aforesaid analysis persuaded the learned Single Judge to set aside the order passed by the learned trial Judge. However, the Single Judge observed that it would be open to the plaintiff to raise all pleas against the counterclaim. 6. We have heard Mr. Arvinder Arora, learned counsel for the appellants and Mr. S.S. Nara, learned counsel For the Respondents. 7. At the very outset, we must make it clear that we are not inclined to advert to the defensibility or justifiability of the order of rejection of the counter-claim by the learned trial Judge or the annulment or invalidation of the said order by the High Court. We shall only dwell upon the issue whether the revision petition could have been entertained or was it obligatory on the part of respondents herein to assail the order by way of appeal. 8. The submission of Mr. We shall only dwell upon the issue whether the revision petition could have been entertained or was it obligatory on the part of respondents herein to assail the order by way of appeal. 8. The submission of Mr. Arora, learned counsel appearing for the appellants is that the counter-claim is in the nature of a plaint and when it is dismissed it has to be assailed by way of appeal before the competent forum by paying the requisite court fee on the basis of the claim and such an order cannot be set at naught in exercise of supervisory jurisdiction of the High Court. Learned counsel For the Respondents, per contra, would contend that such an order is revisable and, in any case, when cause of justice has been sub-served this Court should not interfere in exercise of its jurisdiction under Article 136 of the Constitution of India. 9. To appreciate the controversy in proper perspective it is imperative to appreciate the scheme relating to the counter-claim that has been introduced by CPC (amendment) Act 104 of 1976 with effect from 1.2.1977. 9.1 Order 8, Rule 6A deals with counterclaim by the defendant. Rule 6A(2) stipulates thus:- "6-A(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim." 9.2. Rule 6A(3) enables the plaintiff to file a written statement. The said provision reads as follows:- "6-A(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court." 9.3. Rule 6A(4) of the said Rule postulates that: "6-A.(4) The counter-claim shall be treated as a plaint and governed by rules applicable to a plaint. 9.4 Rule 6B provides how the counter-claim is to be stated and Rule 6C deals with exclusion of counter-claim. 9.5 Rules 6-D deals with the situation when the suit is discontinued. It is as follows:- "6-D. Effect of discontinuance of suit. - If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with." 9.6. 9.5 Rules 6-D deals with the situation when the suit is discontinued. It is as follows:- "6-D. Effect of discontinuance of suit. - If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with." 9.6. On a plain reading of the aforesaid provisions it is quite limpid that a counter-claim preferred by the defendant in a suit is in the nature of a cross-suit and by a statutory command even if the suit is dismissed, counter-claim shall remain alive for adjudication. For making a counter-claim entertain-able by the court, the defendant is required to pay the requisite court fee on the valuation of the counter-claim. The plaintiff is obliged to file a written statement and in case there is default the court can pronounce the Judgment against the plaintiff in relation to the counter-claim put forth by the defendant as it has an independent status. The purpose of the scheme relating to counter-claim is to avoid multiplicity of the proceedings. When a counter-claim is dismissed on being adjudicated on merits it forecloses the rights of the defendant. As per Rule 6A(2) the court is required to pronounce a final judgment in the same suit both on the original claim and also on the counter-claim. The seminal purpose is to avoid piece-meal adjudication. The plaintiff can file an application for exclusion of a counter-claim and can do so at any time before issues are settled in relation to the counter-claim. We are not concerned with such a situation. 10. In the instant case, the counter-claim has been dismissed finally by expressing an opinion that it is barred by principles of Order 2, Rule 2 of the CPC. The question is what status is to be given to such an expression of opinion. In this context we may refer with profit the definition of the term decree as contained in section 2 (2) of CPC:- "2. (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within[ [* * *] Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;" 11. In R. Rathinavel Chettiar and Another v. V. Sivaraman, (1999)4 SCC 89 , dealing with the basic components of a decree, it has been held thus: (SCC pp. 93-94, paras 10-11) "10. Thus a "decree" has to have the following essential elements, namely: (i) There must have been an adjudication in a suit. (ii) The adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy. (iii) Such determination must be a conclusive determination resulting in a formal expression of the adjudication. 11. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant." 12. From the aforesaid enunciation of law, it is manifest that when there is a conclusive determination of rights of parties upon adjudication, the said decision in certain circumstances can have the status of a decree. In the instant case, as has been narrated earlier, the counter-claim has been adjudicated and decided on merits holding that it is barred by principle of Order 2, Rule 2 CPC. The claim of the defendants has been negatived. In Jag Mohan Chawla v. Dera Radha Swami Satsang, (1996) 4 SCC 699 dealing with the concept of counter-claim, the Court has opined thus (SCC p.703, para 5) "5... is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit." 13. Keeping in mind the conceptual meaning given to the counter-claim and the definitive character assigned to it, there can be no shadow of doubt that when the counter-claim filed by the defendants is adjudicated and dismissed, finality is attached to it as far as the controversy in respect of the claim put forth by the defendants is concerned. Nothing in that regard survives as far as the said defendants are concerned. If the definition of a decree is appropriately understood it conveys that there has to be a formal expression of an adjudication as far as that Court is concerned. The determination should conclusively put to rest the rights of the parties in that sphere. When an opinion is expressed holding that the counter-claim is barred by principles of Order 2, Rule 2 CPC, it indubitably adjudicates the controversy as regards the substantive right of the defendants who had lodged the counter-claim. It cannot be regarded as an ancillary or incidental finding recorded in the suit. 14. In this context, we may fruitfully refer to a three-Judge Bench decision in M/s. Ram Chand Spg. and Wvg. Mills v. M/s. Bijli Cotton Mills (P) Ltd., AIR 1967 SC 1344 wherein their Lordships was dealing with what constituted a final order to be a decree. The thrust of the controversy therein was that whether an order passed by the executing court setting aside an auction sale as a nullity is an appealable order or not. 15. and Wvg. Mills v. M/s. Bijli Cotton Mills (P) Ltd., AIR 1967 SC 1344 wherein their Lordships was dealing with what constituted a final order to be a decree. The thrust of the controversy therein was that whether an order passed by the executing court setting aside an auction sale as a nullity is an appealable order or not. 15. The Court referred to the decisions in Jethanand and Sons v. State of U.P., AIR 1961 SC 794 and Abdul Rahman v. D.K. Cassim and Sons, AIR 1933 PC 58 and proceeded to state as follows: (Ram Chand Spg. and Wvg. Case, AIR p. 1347, para 13) "13. In deciding the question whether the order is a final order determining the rights of parties and, therefore, falling within the definition of a decree in Section 2(2), it would often become necessary to view it from the point of view of both the parties in the present case - the judgment-debtor and the auction-purchaser. So far as the judgment-debtor is concerned the order obviously does not finally decide his rights since a fresh sale is ordered. The position however, of the auction-purchaser is different. When an auction-purchaser is declared to be the highest bidder and the auction is declared to have been concluded certain rights accrue to him and he becomes entitled to conveyance of the property through the court on his paying the balance unless the sale is not confirmed by the court. Where an application is made to set aside the auction sale as a nullity, if the court sets it aside either by an order on such an application or suo motu the only question arising in such a case as between him and the judgment-debtor is whether the auction was a nullity by reason of any violation of Order 21, Rule 84 or other similar mandatory provisions. If the court sets aside the auction sale there is an end of the matter and no further question remains to be decided so far as he and the judgment-debtor are concerned. Even though a resale in such a case is ordered such an order cannot be said to be an interlocutory order as the entire matter is finally disposed of. Even though a resale in such a case is ordered such an order cannot be said to be an interlocutory order as the entire matter is finally disposed of. It is thus manifest that the order setting aside the auction sale amounts to a final decision relating to the rights of the parties in dispute in that particular civil proceeding, such a proceeding being one in which the rights and liabilities of the parties arising from the auction sale are in dispute and wherein they are finally determined by the court passing the order setting it aside. The parties in such a case are only the judgment-debtor and the auction-purchaser, the only issue between them for determination being whether the auction sale is liable to be set aside. There is an end of that matter when the court passes the order and that order is final as it finally, determines the rights and liabilities of the parties viz. the judgment-debtor and the auction-purchaser in regard to that sale, as after that order nothing remains to be determined as between them." After so stating, the Court ruled that the order in question was a final order determining the rights of the parties and, therefore, fell within the definition of a decree under Section 2(2) read with Section 47 and was an appeal-able order. 16. We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case at hand, the counterclaim which is in the nature of a cross-suit has been dismissed. Nothing else survives for the defendants who had filed the counterclaim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where appeal could lay by paying the requisite fee. It could not have been unsettled by the High Court in exercise of the power under Article 227 of the Constitution of India. Ergo, the order passed by the High Court is indefensible." 38. It could not have been unsettled by the High Court in exercise of the power under Article 227 of the Constitution of India. Ergo, the order passed by the High Court is indefensible." 38. After perusing aforesaid judgment passed by Hon'ble Apex Court, this Court need not to elaborate further on the issue at hand because Hon'ble Apex Court has categorically held that if by virtue of order of the Court rights have finally been adjudicated, it would assume the status of decree. Hon'ble Apex Court has also stated that Court may or may not draw a formal decree but if rights are finally adjudicated, it would assume the status of a decree. Learned Apex Court has further held that in such like situation order passed by trial Judge has the status of decree and challenge to the same has to be made before the appropriate forum where appeal could lay by paying the requisite fee. 39. Accordingly, in view of the detailed discussion made here-in-above as well as law laid down by Hon'ble Apex Court, this Court sees no force in the contention put forth on behalf of the counsel representing the appellant-defendant that in the absence of specific decree drawn by learned trial Court at the time of dismissal of their counter claim, defendant could not file separate appeal. 40. The case law cited by the learned counsel representing the appellant-defendant, referred here-in-above, is concerned, same may not be applicable in the present facts and circumstances of the case. In the case titled Narhari and others v. Shanker and others, AIR 1953 S.C. 419 ; two separate appeals were taken by two sets of the defendants against the common decree of trial Court. The learned Appellate Court allowed both the appeals and dismissed the plaintiff suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were ordered to be prepared. The plaintiff being aggrieved with the aforesaid judgment passed by the appellate Court preferred two appeals, one of the appeal was time barred and on the principle of 'res judicata' the High Court dismissed both the appeals. The Hon'ble Apex Court further held that it was not necessary to file two separate appeals in this case and the question of res judicata arose only when there were two suits. 41. The Hon'ble Apex Court further held that it was not necessary to file two separate appeals in this case and the question of res judicata arose only when there were two suits. 41. This Court, after carefully going through the aforesaid judgment of the Hon'ble Apex Court, is convinced that same is not applicable in the present facts of the case, where learned trial Court while decreeing the suit for recovery dismissed the counter claim having been filed by the appellant-defendant. 42. Similarly, this Court finds that the judgment passed by Hon'ble Apex Court in Gangadhar and another v. Shri Raj Kumar, AIR (1983) SC 1202, is not application in the present case. As far as the judgment passed by the Hon'ble Apex Court in Tamilnad Mercantile Bank Shareholders welfare Association v. S.C. Sekar and others (2009) 2 SCC 784 is concerned, same is also not applicable in view of the facts and circumstances of the present case. 43. True, it is that when justice is at stake, technical or pedantic approach should not be adopted by courts causing miscarriage of justice to public litigant as has been held by the Hon'ble Apex Court in B.S. Sheshagiri Setty and others v. State of Karnataka and others (2016) 2 SCC 123 . But the aforesaid observation having been made by the Hon'ble Apex Court may not be of any relevance as far as facts of the present case are concerned, especially when specific procedure has been laid down in the Civil Procedure Code to lay challenge, if any, to the order of the dismissal of the counter claim and same needs to be followed strictly. If suit/counter claim of the parties are dismissed for non compliance of specific provisions, if any, contained in the code, by no stretch of imagination, it can be stated that court adopted technical and pedantic approach. In the aforesaid case observations as have been made by the Hon'ble Apex Court are in all together in different context, wherein appellants were poor farmers, who were litigating for nearly three decades for their land, which was only source of income and livelihood. In the aforesaid case observations as have been made by the Hon'ble Apex Court are in all together in different context, wherein appellants were poor farmers, who were litigating for nearly three decades for their land, which was only source of income and livelihood. The award of the arbitrator dated 31.5.1975 was passed ex parte against the appellants and thereafter Karnataka State Cooperative Land Development Banks on the basis of some government order, issued circular dated 2.3.1984 stating therein that farmers who had become defaulters as on 30.6.1982 could repay the principal amount to such banks. In the aforesaid case, appellant had repaid the entire principal amount within the time specified in the circular but despite that auction sale of the property in question was conducted and the confirmation of the sale was ordered without considering the relevant fact of repayment of principal amount due to the Bank within the time stipulated in the notification issued by the bank. Accordingly, in view of the peculiar facts as have been stated above, the Hon'ble Apex Court made aforesaid observation with regard to technical or pedantic approach not to be adopted by the Courts causing miscarriage of justice to public litigant. 44. Consequently, in view of the detailed discussion made here-in-above, this Court is of the view that learned First Appellate Court erred in entertaining the composite appeal having been preferred on behalf of the appellant/defendant laying challenge therein to the judgment passed by learned trial Court decreeing the suit of the plaintiff as well as dismissing the counter claim preferred on behalf of the appellant/defendant. In view of the latest law laid down by the Hon'ble Apex Court as well as provisions contained in the law as discussed above, appellant/defendant being aggrieved with the dismissal of the counter claim ought to have filed separate appeal by affixing separate court fee and composite appeal, as has been preferred in the present case, was not maintainable. In view of the aforesaid findings having been returned by this Court on the additional substantial question of law, other substantial questions of law have become redundant and as such, are not required to be answered at this stage. 45. In view of the aforesaid findings having been returned by this Court on the additional substantial question of law, other substantial questions of law have become redundant and as such, are not required to be answered at this stage. 45. As far as judgments relied upon by the learned counsel appearing for the appellant-defendant are concerned, this Court is of the view that the same are not applicable in the present facts and circumstances of the case, especially in view of the law laid down by the Hon'ble Apex Court (supra). 46. Consequently, in view of the detailed discussion made here-in-above as well as latest law laid down by the Hon'ble Apex Court in Rajni Rani's case supra , the present appeal is not maintainable and same is accordingly dismissed. All miscellaneous applications are disposed of.