Jyoti Alias Heera vs Omwati Alias Sato And 2 Others
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Allahabad High Court

Jyoti Alias Heera vs Omwati Alias Sato And 2 Others on 31 May, 2024

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?A.F.R.
 
Neutral Citation No. - 2024:AHC:99904
 
Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3470 of 2020
 

 
Petitioner :- Jyoti Alias Heera
 
Respondent :- Omwati Alias Sato And 2 Others
 
Counsel for Petitioner :- Ashish Kumar Singh,Shreya Gupta
 
Counsel for Respondent :- Siddhartha Srivastava
 

 
Hon'ble Ajit Kumar,J.
 

1. Heard Ms. Shreya Gupta and Sri Ashish Kumar Singh, learned counsel for the petitioner as well as Sri Siddhartha Srivastava, learned counsel for the contesting respondents.

2. Briefly stated facts of the case are that plaintiff/ petitioner before this Court, instituted a suit for permanent prohibitory injunction being Original Suit No. 719 of 2010 and looking to the suit property and the relief claimed, the valuation declared was Rs. 50 lacs. In the said suit the defendant/ respondent nos. 1 & 2 filed their written statement as well as counter claim to which the valuation was declared at Rs. 16 lacs. There was never a dispute raised regarding valuation of the suit as well as the counter claim.

3. By common judgment and decree dated 26.11.2018 the trial court while dismissing the suit, decreed the counter claim of the defendant/ respondent nos. 1 & 2. Resultantly, petitioner preferred a first appeal before the High Court against the judgment dismissing his suit on the ground that valuation being Rs. 50 lacs, it executed the pecuniary limit of jurisdiction of District Judge which being only Rs. 25 lacs. First Appeal came to be registered as First Appeal No. 157 of 2019. In so far as the decree of the counter claim is concerned, the plaintiff/ petitioner preferred a first appeal before the District Judge. The defendant/ respondent nos. 1 & 2 took an objection as to the maintainability of the appeal on the ground that for the purposes of jurisdiction it is the valuation of the suit which will matter and therefore, the appeal would lie before the High Court and not before the District Judge. This objection was upheld by the District Judge, Bareilly under his order dated 13.03.2020 holding the appeal to be not maintainable in the court of District Judge on account of pecuniary limit of Rs. 25 lacs to exercise the jurisdiction. Thus, the Misc. Case No. 54 of 2020 was disposed of. It is this order which is under challenge before this Court.

4. It had been argued by learned counsel for the petitioner Ms. Shreya Gupta that the learned District Judge had wrongly interpreted the relevant provisions of C.P.C. to hold that appeal would lie in a court having pecuniary jurisdiction for valuation of the suit. It was argued that a harmonious construction of the provisions contained under Order VIII Rule 6-A and Order XX Rule 19(2) of C.P.C. would lead to the conclusion that the counter claim for being treated as an independent suit for adjudication, therefore, its valuation would matter in choosing a forum for appeal arising out of the judgment of trial court. It is argued that Order VIII Rule 6-C itself provides that a counter claim cannot exceed the pecuniary limit of the jurisdiction of the court where the suit is pending.

5. So any counter claim with higher valuation would not lie before the concerned court trying the suit.

6. According to Ms. Gupta, therefore, the counter claim inviting an independent adjudication may be by way of common judgment by the trial court, would have to be taken as independent suit for all purpose including its valuation to chose a forum of appeal.

7. The next argument submitted was that Order XX Rule 19(1) and (2) of C.P.C. did not prescribe for regular appeals but for cases where the money decree was passed. It was also argued additionally, that Order XX Rule 19(1) of C.P.C. was only for the purposes of drawing a decree and not for providing a forum of appeal. According to her, the manner and method of drawing a decree has been the object for incorporating the relevant provisions under Order XX of C.P.C. by the legislature. According to learned Advocate Order XX Rule 1 and 2 of C.P.C. had nothing to do with Order XLI of C.P.C.

8. In support of her argument, learned counsel had relied upon the judgment of coordinate bench in the case of Cantonment Board v. Shakuntala Devi, 2018 (5) ADJ 647, a Supreme Court judgment in the case of Jag Mohan Chawla & Others v. Dera Radha Swami Satsang & Others, Civil Appeal No. 8275 of 1996 (arising out of S.L.P. (C) No. 22254 of 1994 decided on 07.05.1996 (MANU/SC/0565/1996).

9. Per contra Sri Siddharth Srivastava learned Advocate had submitted that provisions regarding counter claim to be decided like a suit came to be incorporated by way of inserting Rule 6-A under Order VIII vide amending Act No. 104 of 1976 and simultaneously vide same amending Act, Order XX Rule 19(1) and 19(2) also came to be amended incorporating the words and expression "or counter claim" at various places. Thus, according to him whether it was a decree in a suit instituted or in the event counter claim was allowed against the plaintiff, appeal arising out of such decree shall be subject to the same provisions as applicable in respect of appeals, if no counter claim had been set up. He has also drawn the attention of the Court to first proviso to sub rule (1) of Rule 6-A of Order VIII that counter claim exceeding the pecuniary limits of the jurisdiction of the Court where the suit was pending, shall not be entertained. Thus, according to him it was ultimately the valuation of the suit that would be a determinative factor for jurisdiction of a court whether decree in suit is challenged or decree in a counter claim of the same suit.

10. Learned counsel for the respondent Mr. Siddharth Srivastava has relied upon the judgment of coordinate bench of this Court in the case of Ashok Kumar Singh Sengar vs. Om Prakash Chaturvedi, 2016 All. C.J. 1394, Division Bench of this Court in the case of Govind Singh vs. Rajendra Prasad Gupta, 2018 All. C.J. 1941. Judgment of Kerala High Court in the case of Pampara Philip vs. Koorithottiyil Kinhimohammed, 2007 0 AIR (Ker) 69 = 2006 0 Supreme (Ker) 680; Teofilo Barreto vs. Sadashiva G. Nasnodkar & Others, 2007 (3) Civil Court Cases 565 (Bombay).

11. Having heard learned counsel for the parties and having perused the records, pleadings raised, the order impugned, the relevant provisions of C.P.C. placed before me, I find the only issue to be, as to whether an appeal in the event of a decree passed by the trial court decreeing the counter claim would lie on the basis of valuation of counter claim or valuation of the suit. In order to appreciate the argument advanced by learned counsel appearing for the respective parties, it is necessary to reproduce the provisions as contained under Order VIII Rule 6-A of C.P.C. which is quoted herein below:

"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 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."

(Emphasis added)

12. From the provisions as quoted above, it is clear that the defendant has been vested with a right to set up a counter claim to the claim set up in the plaint. Sub rule (1) of Rule 6-A is very clear that once the suit has been brought in by the plaintiff whether before bringing the suit or after bringing the suit, if the defendant has a cause of action to set up a counter claim against the plaintiff, he may do so. So, he need not file a separate suit but to set up a counter claim, obviously the purpose being same and the suit property being same.

13. Sub rule (2) clearly provides that if such counter claim is set up then it will be treated for the purposes of adjudication like a cross suit so as to enable the court to pronounce the judgment on its own merit independent of the merit of the claim set up by the plaintiff and so in these circumstances, sub rule (3) provides for the plaintiff to file a written statement to the counter claim. The counter claim thus, has been directed to be treated as a plaint and shall be governed by rules applicable to the plaints. This is perhaps the reason why it has been held repeatedly by the court that the counter claim cannot be by way of pleadings seeking amendment in the written statement.

14. Though a counter claim can be set up along with the written statement as a plaint case for the defendant but what is very interesting in the provision is the first proviso to sub rule (1). The proviso does not permit a counter claim to exceed the pecuniary limit of jurisdiction of the court. Obviously the jurisdiction of the court means where the suit has been instituted, so any counter claim, if it is to be tried as per rule 6-A, it is to be within the pecuniary limits as far as jurisdiction of the court is concerned where the suit is pending.

15. Now it is also necessary to go through the relevant provisions as contained under Rule 19 of Order XX and its sub rules. The Rule 19 of Order XX is reproduced hereunder:

"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 not 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."

(Emphasis added)

16. The heading of the rule 19 shows the words and expression "or counter claim" in caption and also so in sub rule (1) and (2). The caption part is linked to the amendment introduced in C.P.C. in these provisions vide amending Act No. 104 of 1976.

17. Interestingly rule 6-A of Order VIII is also inserted vide Amending Act No. 104 of 1976. This goes, therefore, to show clearly that legislature since was introducing a provision to enable the defendant in a suit to set up counter claim to be tried as an independent suit, wanted that appeal against the decree allowing the counter claim should be subject to same provisions as applicable to appeals arising out of the decrees in suit. Order XX talks of judgment and decree when to pronounce and how to pronounce. It also provides the format of the judgment and also to be signed by the Judge. Rule 5-A was also inserted in Order XX vide amendment Act No. 104 of 1976, which provides for the Judge while announcing the judgment in the event it is subject to appeal to inform the parties, as to the court to which the appeal lies and also the period of limitation for filing such appeal and also shall place on record the information so given to the parties. Thus, Order XX deals with appeals to be filed against the judgment at least to put the learned Judge under obligation to intimate the parties.

18. In so far as the judgment in the case of Cantonment Board (supra) is concerned, I find that in the said judgment the issue was entirely different. In the said case two suit proceedings were instituted while in one suit proceedings, the counter claim came to be allowed which was appealed against unsuccessfully in the first appeal then in second appeal and thus, the decree in the counter claim became final, but the opposite party Cantonment Board tried to raise a question as to the validity of the decree of the counter claim during the pendency of appeal arising out of the second suit. The court had held that once the counter claim had become final after the decree stood affirmed in the first appeal and second appeal and so it was not open for the cantonment board to raise question as to the maintainability of the counter claim in second appeal arising out of another suit. So it is in that context the court held the right of claim in respect of the cause of action accruing before the defendants against the plaintiff either before or after filing of the suit but of course, before the defendant had delivered his defence or before the time for delivering defence had expired. The court dealt with the issue and dismissed the appeal. Vide paras 23, 24 and 31 the court has held thus:

"23. With regard to the counter claim of the defendant-respondent no. 2 seeking a declaration against the Cantonment Board it is to be noted that the trial court by the impugned judgment decreed the counter claim of the defendant-respondent no. 2. Though a first appeal was filed by the Board against the judgment of the trial court decreeing the counter claim of the defendants the appellate court dismissed the appeal and no second appeal has been preferred against the said decree, decreeing the counter claim and therefore, the decree of the trial court with regard to the counter claim set up by the defendant-respondent no. 2 has become final and cannot be questioned in the present second appeal.

24. Even otherwise, the contention of the learned counsel for the appellant that the counter claim itself was not maintainable is wholly fallacious. Order VIII Rule 6-A of the Code of Civil Procedure provides that 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 before 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 for delivering defence has expired.

31. The right to set up a counter-claim was introduced in the Code of Civil Procedure by Amendment Act no. 104 of 1976 w.e.f. 1.2.1977 introducing Rule 6-A in Order VIII. Likewise the amendment in Order XX Rule 19 providing for appeal against a counter-claim was also introduced by the Amendment Act no. 104 of 1976 and Sub Rule 2 of Rule 19 clearly provides that 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. Thus, when the counter-claim set up by the defendant-respondent no.2 had been decreed by the trial court it cannot be said that, that decree can be examined in the present second appeal without preferring any second appeal against the said decree. Having not preferred any second appeal against the decree in the counter-claim of the defendant-respondent no. 2 and the decree of the trial court decreeing the counter-claim of the defendant-respondent no. 2 having become final, in my opinion, it is not open for the appellants to question the same in the present second appeal."

(Emphasis added)

19. Order XX Rule 6 provides for contents of decree and as a sequel to the same Rule 19 provides for appeals and after inserting the words and expression 'counter claim' these provisions are also applicable to the judgment passed in counter claim.

20. In so far as the judgment in the case of Jag Mohan Chawla (supra) cited by Ms. Gupta, is concerned, the court in that case has also gone into this aspect of the matter that a the counter claim as has been conceived of and contemplated under Rule 6-A to 6-G of Order XX is virtually a cross suit to be adjudicated upon like an original suit and it may not relate through or connected with the original cause of action or pleadings raised by the plaintiff. The court held that the defendant may set up a cause of action which accrued to him even after the institution of suit.

21. I do not find any dispute to this above preposition of law. The provisions as contained under sub rule (1) of Rule 6-A clearly provides for maintaining the counter claim of the defendant may be for a cause of action prior to or subsequent to institution of the suit.

22. Now coming to the judgment cited by learned counsel for the respondents Mr. Srivastava in the case of Ashok Kumar Singh Sengar (supra), I find that a coordinate bench of this Court has very exhaustively dealt with the provisions as contained under Order XX Rule 19(2) of C.P.C. The coordinate bench relied upon the judgment of Full Bench of Bombay High Court and Kerala High Court that had been cited before me as well. The Court dealt with the provisions as contained under Order XX Rule 19 C.P.C. along with Rule 6-A of Order VIII of C.P.C. and ultimately held that for the purpose of maintaining appeal in the event a decree passed in counter claim was challenged, it was the valuation of the plaint that would matter. Vide paras 20, 21, 22, 23, 24, 27 & 28 the court held thus:

"20. Order 20, Rule 19(2) specifically provides that 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. Therefore, on a plain reading if any decree passed in a suit shall be subject to the same provisions in respect of appeal to which it would have been subject.

21. It is evident therefrom that where there is any set-off or counter-claim actually preferred, the decree would be subject to the same provisions in respect of appeals, as if no set-off or counter-claim had been claimed.

22. Now the provisions relating to appeals in respect of decree is not only governed by the provisions contained in Section 96 and Order XLI of the C.P.C., 1908, but also subject to the provisions contained in the Bengal, Agra and Assam Civil Courts Act 1887, the Limitation Act, 1963 and Court Fees Act, 1870.

23. Section 21 of the Bengal, Agra and Assam Civil Courts Act says that an appeal from a decree or order of a Civil Judge shall lie (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five lakhs rupees (enhanced to 25 lakhs rupees for purposes of filing appeals to the District Judge vide U.P. Act 14 of 2015 w.e.f. 7 December, 2015) and that for the purpose of finding the forum of appeal it is the value of the original suit which has to be determined and not the value of the appeal itself, and if the value of the original suit is more than five lakhs rupees, whatever the value of the appeal may be, the appeal shall lie to the High Court. The subject matter of an appeal is valued according to the provisions of the Suits Valuation Act and the Court Fees Act. It is not governed by the Bengal, Agra and Assam Civil Courts Act. (Vide-Sri Purshottam Das Tandon and others Vs. Sri Shyam Nath Segal and others, (1952 AWR 450), Smt. Shalu sharma Vs. Ajay Sharma (AIR 2003 (All) 18) and Gaya Prasad and others Vs.Ram Charan (AIR 1939 (All) 273).

24. The Full Bench of Bombay High Court in Kazi Syed Saifuddin Vs. Kasturehand Abhayrajji Golchha (2000 (4) Bom.C.R. 582); held that once the suit is valued and the jurisdiction of the Court is thus determined at the stage when the suit is instituted, that will be the valuation for the subsequent proceedings in the suit also. Obviously, therefore, the appeal being continuation of the suit, the valuation will govern appeal as well and for the purpose of forum of appeal. It was further held that where both suit and counter claim are dismissed, the subject matter of the appeal would be the plaint. Hence valuation would be as per the valuation of the plaint and Court fee as payable on the plaint, would be as due and payable thereon. The plaintiff cannot be made to value his appeal on the basis of the combined valuation of the plaint and counter claim, in respect of which he makes no claim. The report was subsequently followed in Teofilo Barreto Vs. Sadashiva G. Nasnodkar and others (2007 (4) Bom.C.R. 830).

27. The jurisdiction of the Appellate Court cannot be made dependent on the fluctuating valuation of the claim in appeal. The valuation of claim in appeal has relevance only for the purposes of court fee. The valuation for the purposes of determining jurisdiction and for the purpose of court fee are two distinct factors. They need not be identical or common. The appellant may restrict or relinquish part of the claim and accordingly pay proportionate court fee thereon.

28. The courts below in my opinion have correctly held that valuation of the suit would be valuation of the appeal for determining the jurisdiction of appellate court and not the combined value of the suit and counter claim."

(Emphasis added)

23. The Division Bench of this Court in the case of Govind Singh (supra) has held that jurisdiction of appeal has to be governed by the valuation of the suit and not that of the cross appeal as the valuation of suit is normally static but that of appeal may vary depending upon the relief granted or refused by the court of first instance. Therefore, it could be a case where the suit of higher valuation is dismissed but the counter claim of lesser valuation is decreed in the said suit by a common judgment and decree. So far the purposes of payment of court fees the valuation would vary but as far as the jurisdiction is concerned, it will depend upon the valuation of the suit. Vide paras 13, 14, 15, 16 & 17 the Division Bench has held thus:

"13. Section 21 of the Act as amended vide U.P. Civil Laws (Amendment) Act, 2015 provides for the appeals from Civil Judges and it inter alia lays down that an appeal from a decree or an order of a Civil Judge shall lie to the District Judge where the value of the original suit does not exceed from Rs.5,00,000/- or such higher amount not exceeding Rs.25,00,000/- as the High Court may fix from time to time by notification in the official gazette. It means that appeals from Civil Judges would lie to the District Judge if the value of the original suit from which it arises is between Rs.5,00,000/- to Rs.25,00,000/- and the appeals arising from original suits of higher valuation would thus lie to the High Court.

14. A simple reading of the aforesaid Section 21 of the Act indicates that it is the value of the original suit that governs the jurisdiction of the appeal and not of the valuation of the appeal.

15. It may be noted that the valuation for the purposes of jurisdiction and for the purposes of court fees are two distinct factors.

16. The jurisdiction of the appeal has to be governed by the valuation of the suit and not that of the appeal as the valuation of the suit is normally statistic but that of the appeal may vary depending upon the relief granted or refused by the court of first instance. Thus, if the jurisdiction of appeal is made dependent upon the value of the appeal it will keep fluctuating.

17. It is therefore, to avoid such fluctuation in the jurisdiction of the appellate court that Section 21 of the Act provides that for the purposes of jurisdiction of appeal value of the original suit alone is relevant."

(Emphasis added)

24. In the case of Iqbal Banu v. Ramesh and others, 2018 LawSuit (Raj) 933, learned Single Judge of Rajasthan High Court (Hon'ble Justice Arun Bhansali, as his Lordship then was) has dealt with the aspect of the matter as to whether one appeal would be maintainable if decree is one dismising the suit and decreeing the counter claim, and held that if the decree is one then while challenging the decree passed in suit, the appellant can also challenge the decree passed in counter claim in the same appeal as there is no necessity to file a separate appeal. Vide paras 17, 18 & 19 the court has held thus:

"17. However, the judgments of Himachal Pradesh High Court in the case of Parso (supra) and H.P.State Forest Corporation (supra) 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 set- off 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 (7 of 7) [CFA-166/2018] 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."

(Emphasis added)

25. It is clear that if one appeal lies then one set of court fee will be payable and so also the jurisdiction of that court will get attracted where appeal is maintainable against decree passed in Suit. So it will result in dichotomy both in theory and propriety to hold that appeal against decree in suit will lie in a court of higher pecuniary jurisdiction for valuation of suit and appeal in the matter of counter claim would lie to a court inferior in hierarchy for lower valuation of counter claim. This neither appeals to logic nor, could be an intendment of the legislature.

26. In the case of Teofilo Barreto (supra) an issue arose as to forum to prefer appeal in the event suit is dismissed and counter claim is allowed and the learned Single Judge of Bombay High Court relied upon the Full Bench judgment of that very court in the case of Kazi Syed Saifuddin vs. Kasturchand Abhayrajji Golchha, 2000 (4) BOMCR 582, to hold that the forum of appeal would be determined on the basis of valuation of a suit and not the counter claim. In that case the Bombay High Court has held that in the provisions contained under Order XX Rule 19 of C.P.C. as have come to be amended, the set up off and counter claim are treated at par and have been brought on the same platform with the equal status, same treatment is to be given to the counter claim for the purposes of appeal as is given to a decree of set off. So the provisions for appeal would be the same as applicable to the decree of the suit as if no counter claim has been filed. The Court therefore, concluded that "If the legislative view is that the decree wherein the set off is claimed should go before the same Appellate Forum to which it would have been subject in normal course in absence of claim for set-off; then so far as the counter-claim is concerned; the same treatment will have to be accorded to a decree passed in a suit where counter-claim was preferred. As an extension of the same principle, the cross objection arising from the decree of set-off and/or counter-claim will have to be given similar treatment in the matter of determination of Appellate Forum." This same principle and analogy was made to apply to the cross objection.

27. Thus in view of the above exposition of law, the argument advanced by learned counsel for the petitioner that since the cause of action is relating to decree passed in counter claim is relating to the pleadings in the counter claim and the decree incorporates valuation of counter claim, it is this valuation would be relevant for determination of forum, is rejected. The principal proceedings being suit proceedings and a counter claim being an added advantage given to the defendant to get his claim tried also against the plaintiff but within the jurisdiction in which the suit has been instituted, would mean that it is the valuation of the suit which will determine the forum of appeal.

28. Applying the principle of analytical jurisprudence to the concept of law with which legal provisions have been structured by legislator in the Code of Civil Procedure, I find section 9 to be a substantive provision that provides for institution of a suit in a court of competent jurisdiction. Once the suit is instituted, different orders with rules provide for procedure to be followed and likewise for execution of a decree. Section 96, another section provides for first appeal and section 100 provides for second appeal. Order 41 provides for method of filing appeal and order 43 provides for misc. civil appeals against various orders, passed by court of first instance. Order VIII Rule 6-A provides for counter claim to be tried in a suit but puts a rider that counter claim will not exceed in its valuation so as to be beyond the pecuniary limit as to jurisdiction of trial court where suit is going on. Thus, it is well thought of provision to maintain that any counter claim to plaintiff's suit would be triable by the same court. Had there not been a suit, there would have been no counter claim except a fresh suit by such defendant. The legislation, therefore, in its wisdom rightly made valuation of suit to be a determination factor to maintain a counter claim as to forum for adjudication.

29. Again, therefore, legislature amended Order XX Rule 19 to include counter claim. Virtually a counter claim is like a set off claimed by defendant against claim for money set up by the plaintiff. The decree to uphold set off in a money suit is one and so also decree dismissing the suit and decreeing the counter claim is one and it is the decree which is appealable at a higher forum should also be a forum to question set off and so also decree passed in counter claim. So if plaintiff would chose a forum to challenge a decree dismissing the suit, shall have to chose that same forum for appeal against that very decree decreeing the counter claim. Plaintiff can not chose two forums to question a common decree on the basis of two different valuations qua suit and counter claim.

30. To address this issue from different angle is also necessary. If two forums are allowed to question a common decree, it may invite contrary judgments in appeal or in other words a court lower in hierarchy may be asked by higher court to wait for its judgment. This, if happens, will certainly frustrate the purpose with which right to file counter claim was vested in a plaintiff's suit. The argument by Ms. Gupta that right to second appeal will be lost if the order impugned is upheld, does not appeal to reason. Ms. Gupta's client has already filed first appeal before the High Court, and will have no opportunity of second appeal against that very judgment. Legislative action to provide for pecuniary jurisdiction to a court, cannot be a matter of debate. This is all done so in the wisdom of legislature and one cannot be permitted to question wisdom of legislature, the ultimate law makers.

31. Thus, for the purpose of payment of court fees the valuation of decreed counter claim will be relevant but for the purpose of jurisdiction so as to select a forum of appeal, it is the valuation of suit which would be relevant. The District Judge therefore, rightly held that appeal was not maintainable.

32. Petition thus on this count lacks merit as no error of law is seen in the judgment passed by the District Judge. However, it is left open for the petitioner to either seek amendment in the first appeal pending before this Court or file a separate first appeal challenging the decree allowing the counter claim and move an appropriate application also along with that seeking benefit of Section 14 of Limitation Act, 1963.

32. Thus, this petition decided accordingly.

Order Date :- 31.5.2024

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