JUDGMENT : Chitambaresh, J. 1. The Registry has noted a defect to the effect that a single memorandum of Regular First Appeal would not suffice against a decree dismissing the suit and decreeing the counter claim. The Registry opined that two separate memorandum of Regular First Appeal need to be filed against the decree in view of Girija v. Rajan [ 2015 (1) KLT 695 ]. We however directed the Registry to number the Regular First Appeal with a rider that its maintainability would be decided during hearing at the time of admission. 2. We accordingly heard Mr. T. Krishnan Unni, Senior Advocate on behalf of the Appellant, Mr. M.P. Ashok Kumar, Advocate on behalf of the first respondent and Mr. P.K. Mohanan, Advocate on behalf of the second respondent as also Mr. P. Viswanathan, Advocate as amicus curiae at the time of admission. 3. The suit is one for a decree of specific performance of an agreement to sell and for prohibitory injunction restraining the defendants from alienating the plaint schedule property. The counter claim filed by the first defendant is one for a decree to recover possession of the plaint schedule property from the plaintiff on the strength of title. The suit in O.S.No.318/2010 on the file of the court of the Subordinate Judge of Sulthanbathery was dismissed and the counter claim decreed. The plaintiff has filed a single memorandum of Regular First Appeal against the composite decree however showing the valuation and the payment of court fee separately. 4. A quick reference to Rule 6A of Order VIII of the Code of Civil Procedure, 1908 ['the CPC' for short] which speaks of counter claim by defendant is profitable and the same is as follows:- “6-A. 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 the 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 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.” (emphasis supplied) Thus the counter claim shall have the same 'effect' as a cross suit and shall be 'treated' as a plaint under Sub-rules (2) and (4) of Rule 6-A of Order VIII of the CPC only by a legal fiction. A separate cross suit or a plaint need not be filed and it would suffice if the defendant raises a counter claim in the written statement and pay court fee thereon. 5. Let us see the decree passed when a counter claim raised by the defendant is allowed as is discernible from Rule 19(1) of Order XX of the CPC which is extracted hereunder:- “19. Decree when set-off or counterclaim is allowed:- (1) Where the defendant has been allowed a set-off or counter-claim against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.” The homogeneity is evident in that the composite decree shall state what amount is due to the plaintiff and the defendant and shall be for the recovery of any sum which appears to be due. Only one appeal is envisaged against 'every' decree passed by any court exercising original jurisdiction to the court authorised to hear appeals. This is well evident from a plain reading of Section 96 of the CPC which is the substantive provision for filing an appeal coupled with order XLI Rule 1 of the CPC. Only one judgment would be rendered in disposal of the suit and the counter claim which need accompany the memorandum of appeal under Rule 1 of Order XLI of the CPC. There is no separate form for a memorandum of appeal evident by Appendix G which merely insists on the grounds of objection to the decree to be set forth. Only one judgment would be rendered in disposal of the suit and the counter claim which need accompany the memorandum of appeal under Rule 1 of Order XLI of the CPC. There is no separate form for a memorandum of appeal evident by Appendix G which merely insists on the grounds of objection to the decree to be set forth. We are unable to comprehend the wisdom behind the insistence of two separate appeals to be filed against a composite decree which is homogenic in character. 6. The enabling provision in Rule 6-C of Order VIII of the CPC to separate the suit claim and the counter claim in a given case further indicates that it is an unified proceeding. This has been noticed by the Madras High Court in T.K.V.S. Vidyapoornachary Sons v. M.R. Krishnamachary, AIR 1983 Mad 291 wherein it was observed as follows:- “6......However, there are strong indications to the contrary to be found in the Code in the conception of the counter-claim especially as provided for Order 8,Rule 6-A. This Rule speaks of a counter-claim as a plaint in one place and as a cross claim in another place. Nevertheless, in its most operative provision, it lays down that the court shall pronounce a single judgment in the suit, both on the original claim and on the counter-claim. The susceptibility of a counter-claim to be dealt with in a single judgment along with a suit claim, in my opinion, runs counter to the idea of the two being regarded as things apart. It is not merely that the Code provides for a single judgment to dispose of, at one stroke, the suit claim as well as a counter-claim, like hitting two birds with one stone. But Rule 6-C specifically lays down a special procedure to separate the suit claim from the counter-claim, wherever the separation is called for. This provision emphasises by implication that as a general rule a suit claim and a counter-claim ought properly to be regarded as constituting a unified proceeding. The rule, however, makes for an exception, and it is this should the plaintiff in a give case desire that the counter-claim filed by the defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief before the trial Court and it should be done before the issues are settled. On his application for amending his suit claim and the counter -claim, the court will have to consider whether the counter-claim should be dealt with as part and parcel of the suit or whether the defendant should be referred to a separate suit. These exceptional provisions in Rule 6-C only illustrate the homogeneity of the suit claim and the counter-claim as a single proceeding. 7............... We are, however for the nonce, concerned in this case with the question whether against a single judgment disposing of a suit claim and a counterclai, there should be an insistent demand for a plurality of remedial steps for the pursuit of which the party aggrieved should be inexorably driven. The answer seems to me to be clearly in the negative. It is to be found in the words of Rule 6-A(2) which enjoins one single judgment in the suit both on the original claim and on the counterclaim as the one and only method of disposal of all the issues in controversy between the parties.” (emphasis supplied) The above decision was followed by this Court in Philip v. Kunhimohammed [ 2006 (4) KLT 998 ] ofcourse relating to the valuation of the subject matter in appeal wherein it was held as follows:- “When the homogeneity of this amounts to a single proceeding or unification of the proceeding then necessarily, when that matter is decided and it goes to the higher forums, it is that single proceeding which is being challenged before the appropriate forums.” There can therefore be no impediment in entertaining a single memorandum of appeal against the composite decree in view of the homogeneity of the suit claim and the counter claim as a single proceeding. 7. The following observations of Mr. Justice Mack in Sekura Murahari Rao v. Kandula Bappayya, AIR 1949 Mad 742 interpreting the procedural law is illuminating:- “It is not necessary that every procedural order of a court should be supported by a specific statutory provisions, and when there is neither provision nor prohibition, it has to be guided by ordinary principles of common sense, justice, equity and good conscience.” We did not find any prohibition in the CPC as regards the entertainment of a single memorandum of appeal against a composite decree passed in an unified proceeding of the suit and counter claim. The suit claim and the counter claim have telescoped into a composite decree and a plurality of appeals against the same is quite unwarranted therefore. 8. It has been held in A.Z. Muhammed Farook v. State Government, 1984 KLT 346 (FB) that the subject matter would be the aggregate of the amounts claimed in the plaint and the counter claim. The subject matter of the suit and the counter claim has been separately valued and court fee paid thereon in the single memorandum of appeal. The subject matter in the suit and the counter claim is one and the same in the instant case and there is no dispute as regards the forum to which the appeal lies. We hold that the memorandum of Regular First Appeal filed impugning the composite decree in the suit and in the counter claim is properly constituted and maintainable. 9. The decision in Girija's case (supra) to the extent it holds that separate appeals need to be filed challenging the decree in the suit and in the counter claim does not lay down the correct law. The said decision militates against the scheme of the Statute and also the dictum in Philip's case (supra) and is hereby overruled. We add that this precise question was not answered in Mathew v. Rajan for the reason that such an issue did not arise in that case as stated therein. 10. The objection of the Registry to the effect that a single memorandum of Regular First Appeal is not maintainable against the decree passed in the suit and in the counter claim is overruled. Ramakrishnan, J I have gone through the order passed by my brother Mr. Justice V. Chitambaresh. I am fully agreeing with the reasoning for coming to the conclusion that a single appeal will suffice in the case of an appeal filed against dismissal of the suit and decreeing of the counter claim. I want to add something more on this aspect. 2. There is no provision provided in the Code of Civil Procedure (hereinafter referred to as 'the Code') as to how an appeal will have to be filed in such cases. Normally under section 96 of the Code, appeal will lie against decree and not against the judgment. I want to add something more on this aspect. 2. There is no provision provided in the Code of Civil Procedure (hereinafter referred to as 'the Code') as to how an appeal will have to be filed in such cases. Normally under section 96 of the Code, appeal will lie against decree and not against the judgment. Further in the case of case and counter claim, though counter claim is treated as a plaint in a cross suit, the scheme of Order 8 Rule 6-A to 6-F will go to show that both will have to be treated as a claim made in the same suit and the judgment will have to be pronounced in respect of a counter claim in the same suit. It is true that Order 8 Rule 6-C says that there is an option given to the plaintiff to exclude the counter claim to be tried along with the suit and in such circumstances, if the court feels that it will have to be decided separately, then a right will be provided to the defendant to proceed with the counter claim by way of separate suit. Order 8 Rules 6-D says that in the case of discontinuance of the suit or the suit of the plaintiff is stayed or dismissed, the counter claim may nevertheless be proceeded with. Rule 6-F says that where in any suit a set off or counter claim is established as a defence against the plaintiff's claim and the 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 get such balance. 3. Order 20 Rule 19 deals with decree when set off or counter claim is allowed which reads as follows: 19. Decree when set-off [or counter -claim] is allowed:-(1) Where the defendant has been allowed a set RFA. off [or counter-claim] against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. off [or counter-claim] against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. (2) Appeal from decree relating to set-off [or counter-claim]:-Any decree passed in a suit in which a setoff [or counter-claim] is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off [or counter-claim] had been claimed. (3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise.” 4. It also gives an indication that in the same decree the amount due to the plaintiff o r the defendant has to be set out to which each parties entitled to recover from either party and sub-rule (2) of Rule 19 Order 20 says that any decree passed in a suit in which set off or counter claim is claimed shall be subject to same provisions in respect of appeal to which it would have been subjected to, if no set off or counter claim had been claimed. 5. In the decision reported in Nherapoyil N.P Moideen v. K. Narayanan Nair, AIR 1997 Ker. 318 it has been observed that in an appeal filed against a decree containing suit claim as well as counter claim and grounds regarding counter claim was also made, but since no court fee was paid, the appeal was not rejected on that ground but it has been held that since no court fee is paid on the counter claim relief that alone was rejected and the appeal was proceeded with and though the counter claim was not considered, the question of discharge claimed by the defendant was considered in that appeal. That also gives an indication that single appeal against the decree in respect of case and counter claim is not prohibited. 6. The dictum laid down in the decision reported in Thomas and Others v. Dr. Sudha and others, 2010 (4) KHC 575 also cannot be taken as a precedent for coming to the conclusion that single appeal is not maintainable against the case and counter claim. 6. The dictum laid down in the decision reported in Thomas and Others v. Dr. Sudha and others, 2010 (4) KHC 575 also cannot be taken as a precedent for coming to the conclusion that single appeal is not maintainable against the case and counter claim. That was a case where it was only held that in the case of appeal filed against the dismissal of the suit by which counter claim was also dismissed, the defendant in that suit who made the counter claim is not entitled to make a cross objection in the appeal filed by the plaintiff against the decree dismissing the suit and his remedy is to file a separate appeal as he has got right of appeal against the same legality of which we are not deciding in this case. So that can only be treated as a proposition when there is a right of appeal is provided against the dismissal of the counter claim, that will have to be agitated by the party affected by the same by a separate appeal but he cannot challenge the same by way of cross objection under Order 41 Rule 22 of the Code that will not prohibit the plaintiff who wants to challenge the counter claim in an appeal filed by him against the dismissal of the suit in the same appeal. 7. Appeal is a right provided under the statute. The form in which the appeal will have to be filed is only a procedure. There is no specific form provided as to how in a case where case and counter claim are disposed of in the same suit by the same judgment, the appeal has to be preferred. It cannot be treated as disposal of several independent suits having common question to be decided by joint trial by a common judgment. In such cases though the suits are disposed of by a common judgment, separate issues are framed in respect of each suit and they are answered and then separate decrees are being drawn in respect of each suit which were tried jointly. So independent decrees are available as regards disposal of several suits by a common judgment by way of joint trial and each decree is separately appealable and separate appeals will have to be filed against each decree by the aggrieved party under section 96 of the Code. So independent decrees are available as regards disposal of several suits by a common judgment by way of joint trial and each decree is separately appealable and separate appeals will have to be filed against each decree by the aggrieved party under section 96 of the Code. It is settled law that procedural law should never affect the substantive law and the procedural justice should always give way to advance substantive justice. 8. In the decision reported in Sangram Singh v. Election Tribunal Kotah and another, AIR 1955 SC 425 it has been observed that: “A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further it ends not a penal enactment for punishment and penalties; not a thing designed to trip people up. To technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exception and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle”. 9. Further in the decision reported in Central Bureau of Investigation, Special Investigation Cell No.1, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768 it has been held that the procedural law is meant to further the ends of justice and not to frustrate the same. It is a an accepted rule that interpretation which further the ends of justice should be preferred. The same view has been reiterated in the decision reported in M/s.Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur, AIR 1968 SC 488 . 10. It is a an accepted rule that interpretation which further the ends of justice should be preferred. The same view has been reiterated in the decision reported in M/s.Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur, AIR 1968 SC 488 . 10. In the decision reported in Sita Ram and others v. The State of U.P., AIR 1979 SC 745 a constitution bench of the Supreme Court while construing Article 145 and Order 21 Rule 15 (1)(c) of Supreme Court Rules, 1966 along with section 384 of the Code it has been held in Para 26 regarding the manner in which the appeal will have to be understood which reads as follows: “26. At the threshold, we have to delineate the amplitude of an appeal, not in abstract terms but in the concrete context of Article 134 read with Article 145 and Order XXI Rule 15 and Section 384 of the Criminal Procedure Code, 1973 the nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdictions and systems of jurisprudence. This point has been brought out sharply in “Final Appeal”. The learned authors ask: Final Appeal. A Study of the House of Lords in its judicial Capacity by Louis Blom-Cooper QC Clavedon Press, Oxford, 1972 pp.44-45. “But what does 'appeal' really mean: indeed, is it a meaningful term at all in any universal sense? The word is in fact merely a term of convenient usage, part of a system of linguistic shorthand which accepts the need for a penumbra of uncertainty in order to achieve universal comprehensibility at a very low level of exactitude. Thus, while 'appeal' is a generic term broadly meaningul to all lawyers in describing a feature common to a wide range of legal systems, it would be misleading to impute a precise meaning to the term, or to assume, on the grounds that the word (or its translated equivalent) has international currency, that the concept of an appeal means the same thing in a wide range of systems. On any orthodox definition, an appeal includes three basic elements: a decision (usually the judgment of a court or the ruling of an administrative body) from which an appeal is made; a person or persons aggrieved by the decision (who is often, though by no means necessarily party to the original proceedings) and a reviewing body ready and willing to entertain the appeal”. The elasticity of the idea is illumined by yet another passage which bears quotation: “Appeals' can be arranged along a continuum of increasingly formalised procedure ranging from a condemned man in supplication before his tribal chief to something as jurisprudentially sophisticated as appeal by certiorari to the Supreme Court of the United States, Like Ansurine Bevan's elephant an appeal can only be described when it walks through the court room door …. the nature of a particular appellate process – indeed the character of an entire legal system depends upon a multiplicity of interrelated (though largely imponderable) factors operating within the system. The structure of the courts, the status and rule (both objectively and subjectively perceived) of judges and lawyers, the form of law itself – whether, for example it is derived from a code or from judicial precedent modified by statute; the attitude of the courts to the authority of decided cases; the political and administrative structure of the country concerned – whether for example its internal sovereignty is limited by its allegiance to a colonizing power. The list of possible factors is endless, and their weight and function in the social equation defy precise analysis”. In short, we agree in principle with the sum-up of the concept made by the author: “Appeal, as have stressed, covers a multitude of jurisprudential ideas. The layman's expectation of an appeal is very often quite different from that of the lawyer and many an aggrieved plaintiff denied his 'just' remedy by judge or jury has come upon the disturbing reality that in England a disputed finding of fact can seldom, if ever, form the basis of an appeal. Similarly, a Frenchman accustomed to a narrowly legalistic appeal in cessation, subject to subsequent reargument in a court below, would find little familiarity in the ponderous finality of the judgment of the House of Lords. Similarly, a Frenchman accustomed to a narrowly legalistic appeal in cessation, subject to subsequent reargument in a court below, would find little familiarity in the ponderous finality of the judgment of the House of Lords. And a seventeenth - century lawyer accustomed to a painstaking search for trial mistakes in the court record, which formed the basis of the appeal by writ of error, would be bewildered by the great flexibility and increased sophistication of a jurisprudential argument which characterize a modern appeal.” 11. In the decision reported in Owners and Parties interested in M.V. 'Vali Pero' v. Fernandeo Lopez and others ( AIR 1989 SC 2206 ) how the rule of procedure will have to be adopted while interpreting a statute has been considered as follows: “Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and not hurdles to obstruct the pathway to justice. Construction of the rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicialy affected the result have been inadvertently omitted in a particular case. This is the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system”. 12. Apart from the decisions cited by my brother justice regarding the jurisdiction value to be considered, the same has been considered by the latest Division Bench in Valsala v. Sarojini Prabhu ( 2014 KHC 316 ) where it has been held that valuation for the purpose of jurisdiction, the value of the suit and counter claim has to be taken together and payment of court fee will depend upon the subject matter which has been appealed against. So the decision relating to court fee payable and jurisdictional issue will be considered also in respect of case and counter claim, it was treated as the composite value of both the suit and counter claim determines the forum of appeal though court fee need be paid by the party under section 52 of the Court Fees Act in respect of subject matter involved in the appeal alone. So even if the counter claim is for a lessor amount than the suit claim, even then in respect of the counter claim appeal will lie to the same court in which the appeal will have to be filed in respect of the suit as or the purpose of jurisdiction, the composite value of both the suit and counter claim will have to be taken into consideration. That also will give an indication that though counter claim is deemed to be a cross suit by a legal fiction given under the rule, it is treated as part of the same suit and to be decided by the same judgment followed by a single composite decree not by separate decrees. It is also settled law that procedural justice should always give a way to the substantive justice and procedural justice should not be a hurdle for advancing the substantive justice as well. Filing of separate appeals against the case and counter claim is only a procedural aspect which has not been specifically provided in the Code. What is contemplated is only an appeal against the decree and where case and counter claim are disposed of by a judgment in the same suit followed by a composite decree, there is only one decree and not separate decrees as in the case of decrees being drawn in respect of suits disposed of by a common judgment. In such circumstances, insisting for a separate appeal for a suit and counter claim by the same party will only cause unnecessary hardship and create unnecessary procedural hurdle to advance justice. So I am agreeing with the conclusion arrived at my brother that single appeal will lie against case and counter claim and only separate court fee will have to be paid for the respective claims and that will be sufficient. Post the RFA for admission. Need not be treated as part hear.