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2018 DIGILAW 1899 (RAJ)

Iqbal Banu v. Ramesh

2018-09-12

ARUN BHANSALI

body2018
JUDGMENT 1. This appeal has been filed by the appellant aggrieved against the judgment and decree dated 23.2.2018 passed by the Addl. District Judge, Pali, whereby, the suit for cancellation of release deed, possession & damages filed by the plaintiff appellant has been dismissed and the counter claim filed by the defendant respondents for possession has been decreed. 2. The appeal was admitted on 10.4.2018. 3. The respondent no. 2 has filed reply to the stay petition, wherein, an objection has been raised that the appeal as filed is not maintainable, as a single appeal against the dismissal of the suit and decree of the counter claim is not maintainable and, therefore, the appellant cannot claim any stay against the decree passed in counter claim. 4. When the matter came up for orders on stay application, learned counsel for the parties were heard on the objection to the maintainability of single appeal against the impugned judgment, wherein, the suit filed by the plaintiff has been rejected and the counter claim filed by the defendants has been allowed by the trial court. 5. It is submitted by learned counsel for the respondents that the plaintiff filed a suit for cancellation of release deed etc. to which a counter claim for possession was filed. The suit was dismissed and counter claim was accepted. It is submitted that in view of express provisions of Order VIII Rule 6A (2), the counter claim has the effect of a cross suit so as to enable the court to pronounce the final judgment in the same suit, both on the original claim and on the counter claim and, therefore, on passing of the decree based on counter claim filed by the defendants, the same can only be construed as a decree in counter suit and qua the said decree the appellant was required to file a separate appeal and filing of one single appeal in this regard challenging the dismissal of the suit and decree passed in the counter claim is not maintainable. 6. The issue raised pertaining to the non-payment of requisite court fee for challenging both the decrees, even in the present single appeal, though was sought to be argued, the same was then, for time being, left by the learned counsel for the respondents. 7. Reliance was placed on Parso vs. Dumnu Ram & Ors. 6. The issue raised pertaining to the non-payment of requisite court fee for challenging both the decrees, even in the present single appeal, though was sought to be argued, the same was then, for time being, left by the learned counsel for the respondents. 7. Reliance was placed on Parso vs. Dumnu Ram & Ors. (2017) 3 Shim LC 1270, H.P. State Forest Corporation vs. Kahan Singh, (2016) 6 ILR (HP) 1137, Jethu Singh vs. Board of Revenue, (2017) 2 WLN (Raj) 486 and Rajni Rani & Anr. vs. Khairati Lal & Ors. (2015) 2 SCC 682 . 8. Learned counsel for the appellant with reference to the judgment and decree passed by the trial court submitted that the plea raised by the respondent in this regard is baseless. It was submitted that though the counter claim was preferred by the defendants seeking possession, as the same forms part of the written statement only, the same was not registered separately and was tried along with the suit, wherein, the trial court framed issues pertaining to the suit/counter claim and passed the judgment, whereby, the suit was rejected and counter claim was accepted and a common decree sheet was drawn by the trial court, wherein, even the stamp duty paid on the suit & counter claim was clubbed inasmuch as the stamp duty paid by the defendants on the counter claim has not even been indicated in the decree sheet. It is submitted that the provisions of Order VIII Rule 6A (2) CPC, are meant only for the purpose of clarifying the status of the counter claim and the provisions of Order VIII Rules 6A to 6G do not even envisage passing of a separate decree on the counter claim and, therefore, against the rejection of suit and acceptance of counter claim, a single appeal is maintainable and the same has rightly been filed by the appellant and, therefore, the objection raised in this regard deserves to be rejected. 9. Reliance was placed on Pampara Philip vs. Koorithottiyil Kinhimohammad, (2007) AIR Kerala 69 and Shankar Masu Dokare vs. Shobha Subhash Dokare & Anr. (2015) 2 MhLJ 263 . 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. 9. Reliance was placed on Pampara Philip vs. Koorithottiyil Kinhimohammad, (2007) AIR Kerala 69 and Shankar Masu Dokare vs. Shobha Subhash Dokare & Anr. (2015) 2 MhLJ 263 . 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. The facts are not in dispute wherein the plaintiff appellant filed a suit for cancellation of release deed & damages and the defendants filed counter claim claiming possession. The suit filed by the plaintiff was rejected and the counter claim filed by the defendants was accepted. The trial court has drawn a common decree and against the said decree the present appeal has been filed challenging the dismissal of the suit and acceptance of the counter claim. 12. The provision of Order VIII Rule 6A CPC, which deals with counter claim by the defendant under sub-rule (2) provides that 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. Further provisions of Rules 6B to 6G deal with exclusion of counter claim, effect of discontinuance of suit, default of plaintiff to reply to counter claim, relief to defendant where counter claim succeeds and rules relating to written statement to apply to a written statement to be filed in answer to a counter claim. 13. In the case of Rajni Rani the Hon'ble Supreme Court while dealing with the issue pertaining to dismissal of a counter claim being barred by principle of Order II Rule 2 CPC and its setting aside in exercise of revisional jurisdiction or in exercise of power of superintendence or in appeal, inter-alia came to the following conclusion: "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 entertainable by the court, the defendant is required to pay the requisite court fee on the valuation of the counter-claim. For making a counter-claim entertainable 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 counterclaim. The seminal purpose is to avoid piece-meal adjudication. The plaintiff can file an application for exclusion of a counterclaim 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. 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 C.P.C. 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. The principles laid down by Hon'ble Supreme Court essentially has no direct implication insofar as the maintainability of single appeal is concerned. 15. It cannot be regarded as an ancillary or incidental finding recorded in the suit." 14. The principles laid down by Hon'ble Supreme Court essentially has no direct implication insofar as the maintainability of single appeal is concerned. 15. The judgments of Himachal Pradesh High Court in Parso & H.P. State Forest Corporation directly deal with the issue, wherein, the Court dealt with the issue whether one single appeal filed by the plaintiff against the judgment and decree was maintainable, wherein, the trial court while dismissing the suit filed by the plaintiff had decreed the counter claim filed by the defendant and referring to the judgments in the case of Ramagya Prasad Gupta vs. Murli Prasad & Ors. (1974) AIR SC 1320, Premier Tyres Ltd. vs. Kerala State Road Transport Corporation, (1993) AIR SC 1202, Ram Prakash vs. Charan Kaur & Anr. (1997) AIR SC 3760 and Sri Gangai Vinayagar Temple & Anr. vs. Meenakshi Ammal & Ors. (2015) 3 SCC 624 , came to the conclusion that single appeal was not maintainable. 16. A perusal of the above judgments would reveal that the Himachal Pradesh High Court was persuaded to take the above view based on the judgments cited, wherein, it was laid down that in case of two separate decrees even where the same has been passed in the same judgment, two separate appeals are required to be filed and as the provision of Order VIII Rule 6A (2) CPC envisages passing of judgment/decree on the counter claim as a cross suit, the same effect was given to the decree passed on the counter claim. 17. However, the judgments of Himachal Pradesh High Court in the case of Parso and H.P. State Forest Corporation as well as both the learned counsel appearing for the parties did not notice the statutory provisions contained in Order XX Rule 19 CPC, which reads as under: "19. Decree - When set-off or counter-claim 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. (2) Appeal from decree relating to set-off or counter claim - Any decree passed in a suit in which a set-off 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 where the setoff is admissible under rule 6 of Order VIII or otherwise." 18. A bare look at the above provision would reveal that where the defendant is allowed a counter claim against the claim of the plaintiff, the decree shall state so. The crucial provision is sub-rule (2) of Rule 19 which deals with appeal from the decree relating to counter claim, which expressly provides that any decree passed in a suit in which a counter claim is claimed shall be subject to the same provisions in respect of appeal to which it would have been subjected, if no counter claim had been claimed. 19. Language of the provision is explicit, wherein, it has expressly provided that in an appeal from decree passed in suit where a counter claim has been claimed, the appeal would be filed as if no counter claim had been claimed, which necessarily means that the appeal would be against the decree passed in the main suit and the appellant would be entitled to question the passing of the decree on counter claim in the same appeal and, therefore, there is absolutely no necessity of filing separate appeal in case where the counter claim preferred in a suit has been decreed by the trial court. 20. The judgments delivered by Himachal Pradesh High Court being in ignorance of the express provision of Order XX Rule 19(2) CPC, do not lay down the correct law and the judgments of Supreme Court relied on by the said Court did not deal with the subject matter. 21. In view of the above express provision contained in Order XX Rule 19(2) CPC, there is no substance in the submissions made by learned counsel for the respondent, therefore, the objection raised in this regard is rejected. Single appeal is held as maintainable against the decree passed by the trial court, wherein, the suit has been dismissed and counter claim has been accepted. 21. List the appeal for orders on stay application next week.