Dilip vs Leeladhar
2010 Latest Caselaw 34 Bom

                                      1
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH




                                                                    
               WRIT PETITION NO.  1924   OF  2010




                                            
     Dilip s/o Kisanrao Khasbage,
     aged about 35 years, 




                                           
     occupation - Business, r/o
     Behind Saota Chowk, Warud,
     District - Amravati.                     ...   PETITIONER




                                 
                Versus
                    
     1. Leeladhar s/o Pandurang Ganorkar,
        aged about 44 years, occupation -
        Agriculturist,
                   
     2. Dilip s/o Jangluji Durge,
        aged about 28 years, occupation -
        Agriculturist,
      
   



     3. Ankush s/o Sudhakarrao Durge,
        aged about 28 years, occupation -
        Agriculturist,





     All residents of Ward No. 3, Warud,
     Tq. - Warud, District - Amravati.         ...   RESPONDENTS


     Shri V.M. Deshpande, Advocate for the petitioner.





     Shri S.G. Malode, Advocate for the respondents.
                           .....

                       CORAM :  B.P. DHARMADHIKARI, J.
     DATE OF RESERVING THE JUDGMENT       : SEPT.  22, 2010.
     DATE OF PRONOUNCING THE JUDGMENT : OCT.   15, 2010.




                                            ::: Downloaded on - 09/06/2013 16:32:31 :::
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     JUDGMENT :  

In present petition filed as writ petition under Article

226 & 227 of the Constitution of India, Petitioner - Plaintiff has

challenged the order dated 15/2/2010 passed below Ex. 101 by

Joint Civil Judge, Junior Division, Warud, rejecting his

application to transfer Regular Civil Suit No. 119/2000 filed by

him for specific performance along with counterclaim of

Defendants for his eviction, for possession and damages to the

court of Civil Judge, Senior Division, Amravati. The transfer is

sought by pointing out claim in suit valued at Rs.70,600/- and

claim in counterclaim valued at Rs.40,000/- together being

above Rs. One lac, exceed the pecuniary jurisdiction of court of

Junior Division. Trial Court has found that immovable property

involved in specific performance and in eviction or recovery of

possession proceedings is same and can not be clubbed or added

again to determine its jurisdiction. Notice for final disposal is

already issued by this Court. Hence, heard finally by making

Rule returnable forthwith.

2. Advocate Deshpande has relied upon AIR 2007 Ker.

69 "Pampara Philip v. Koorithottiyil Kinhimohammed", and the

decision of Hon'ble Full Bench of that Court in A. Z. Mohammed

Farooq v. State Government, reported in AIR 1984 Ker. 126. He

has pointed out the observations of Hon'ble Full Bench to show

that claims in suit and counterclaim need to be added together to

find out the subject matter of suit and on it depends the

pecuniary valuation relevant for deciding the pecuniary

jurisdiction. Application at Exh.101 for transferring the suit

filed before trial court and at annexure "A" before this Court

effectively discloses his line of argument. Advocate Malode has

relied upon Nahar Industrial Enterprises Ltd. v. Hong Kong and

Shanghai Banking Corpn.-- (2009) 8 SCC 646 to contend that

right of appeal and act of filing suit or counterclaim stand on

entirely different footing. He has supported the impugned order.

Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai

Banking Corpn. (supra) deals with vested right of appeal and

states that a plaintiff in a suit has a vested right of appeal. The

said right is determined keeping in view the date of filing of the

suit. Such a right of appeal can be taken away by express

provision. With respect, I find that this ruling does not lay down

any law relevant for present controversy.

3. In "Pampara Philip v. Koorithottiyil Kinhimohammed",

supra, relied upon by Advoate Deshpande, O.8, R.6A(1), O.20,

R.19(2), S.13 of CPC are considered. Facts disclose that there the

counter claim by defendant was dismissed and plaint claim was

allowed. It is held by learned Single Judge that the defendant

need not file separate appeal but Single Appeal before High

Court challenging both findings is maintainable. It is held that

suit and counter claim in proceedings being unified proceeding,

valuation of appeal would be combination of suit plus counter-

claim. In para 5 of this ruling, the decision of Hon'ble Full Bench

of that Court reported in A.Z. Mohammed Farooq v. State

Government (supra) and also relied upon before me is looked

into. Appeal filed in High Court and considered by Full Bench

there was by plaintiff challenging the grant of counterclaim of

the defendant. Defendant challenged the forum and raised a

contention that forum for appeal was to be ascertained on the

basis of plaint claim. But in that case the subject-matter of the

counter-claim itself exceeded Rs. 10,000/- and therefore the Full

Bench did not decide the question. The Hon'ble Full Bench

considers the implication of Order VIII, Rule 6-A to 6-G and in

paragraph 17 refers to the fact that the counter-claim should be

treated as a plaint and governed by the rules applicable to

plaints. In paragraph 18 it is observed that "having regard to the

aforesaid provisions, it is possible to hold that the 'subject-matter'

of the suit would be the aggregate of the amounts claimed on the

plaint and in the written statement by way of counter-claim".

Therefore, the subject-matter of an appeal to be preferred under

Section 52 of the Court Fees Act, is held to be the aggregate of

the amounts claimed on the plaint and written statement to

govern the appellate jurisdiction. The Hon'ble Full Bench also

considers the judgment of Hon'ble Madras High Court pressed

into service by Petitioner before me. The question whether suit

claim and counter-claim are independent proceedings or unified

proceedings is considered in T. K. V. S. Vidyapoornachary Sons v.

M. R. Krishnamachary, AIR 1983 Mad 291. Hon'ble Full Bench

has borrowed following portion of Madras judgment which reads

as follows :

"Order 8, Rule 6-A 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, 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 given 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".

4. These observations also, therefore, do not show that

if such counterclaim is separated, it can not be tried separately

by same court which is adjudicating claim of plaintiff. On the

contrary scheme in Order VIII Rule 6A clearly shows that such

counterclaim has to fall within pecuniary jurisdiction of the court

whose jurisdiction is invoked by plaintiff. It is nowhere even the

attempt of defendant in both Kerala matters to demonstrate that

because of his/its counterclaim, trial court seized to possess that

pecuniary jurisdiction. Such an attempt is being made by the

present Petitioner plaintiff. Both the judgments of Hon'ble

Kerala High Court consider dispute about forum for filing of an

appeal under S. 96 CPC and not the competency of trial court to

adjudicate such unified proceedings. Before the learned Single

Judge challenge by the defendant was to decree in favour of

plaintiff and also dismissal of his counterclaim. Thus both

challenges required an independent application of mind by the

appellate court. In matter before the Hon'ble Full Bench,

valuation of counterclaim itself exceeded pecuniary jurisdiction

for appeal in District Court.

5. As the view of Hon'ble Kerala High Court has been

pressed into service before me, I find it proper to mention that in

2007(6) Mah.L.J. 127 = 2007 (7) LJSOFT 139 --Teofilo Barreto

Vs. Sadashiva G. Nasnodkar and Ors., this Court through its

Single Judge has found valuation of plaint by plaintiff only

determinative of the appellate forum. Section 22 of the Goa

Civil Courts Act, 1965, is construed there and it is pari-materia

with S.26 of the Bombay Civil Courts Act,1869. That Section 22

reads :-

"In all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeds (one

lakh) the appeal from his decision shall be direct to

the High Court."

Section 26 of the Bombay Act reads :-

"26. In all suits decided by a Civil Judge of which the amount or value of the subject-matter exceeds two lakhs rupees the appeal from his decision shall be

directed to the High Court."

Words "Subject matter" appearing in S. 22 are held to

necessarily mean subject matter of the suit and not subject

matter of the appeal. The jurisdiction of the appellate court is

found not dependent on the fluctuating valuation of the claim in

appeal. The valuation of claim in appeal is held to have

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 Original plaintiff there preferred an appeal being

aggrieved by the dismissal of his suit and he was not aggrieved

by the dismissal of the counter-claim. He, therefore, valued

subject-matter in appeal as per the valuation done in the trial

court. The view reiterated by Full Bench of this Court in the

case of Kazi Syed Saifuddin Vs. Kasturchand Abhayrajji Golchha

reported in 2000 (12) LJSOFT 13 : 2000 (4) Bom.C.R. 582 has

been followed to hold that the valuation of the suit determines

the forum of the appeal and not the valuation of decree.

Principle that the forum for appeal is to be ascertained upon the

value as adjudicated by the court is stated to be not accepted by

majority of the High Courts. Where both suit and counter-claim

are dismissed, this Court has held that 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.

As plaint was valued at Rs.38,500/-, appeal filed before the

District Court was held proper. Counter claim filed by Petitioner-

defendant claiming damages to the tune of Rs.90,00,000/- was

dismissed there. He filed cross objection under Order 41 Rule 22

of CPC valuing it at Rs.90,00,000/-. It is also held that since the

cross-objection is preferred in the appeal which is properly filed

in the District Court, the cross-objection of the petitioner will

have to be decided by the same appellate court only. The

legislative object behind enactment of provision of Order 20 Rule

19(2) of the Code, Section 216 of the old Code of C.P.C. 1882

(Act No.14 of 1882), its substitution with that of Order 20 Rule

19(2) to give effect to the legislative view that all appeals from

the decree relating to set off should lie to the court to which

appeals in respect of the original claim would lie and then new

unamended CPC have been looked into. Further legislative

change brought about in new CPC in the year 1976 by inserting

provisions with respect to counter-claim under Order 8 Rule 6-A

to 6-G & consequent to this insertion of words "counter claim"

immediately after the words "set off" in Order 20 Rule 19(1), (2)

is also taken note of. As such decree passed in a suit where

counter-claim is preferred is held subject to the same provisions

in respect of appeal to which it would have been subject, if no

counter-claim had been preferred. As an extension of the same

principle, the cross objection arising from the decree of set-off

and/or counter-claim has also been given similar treatment in

the matter of determination of Appellate Forum by this Court. It

is however important to note that above mentioned view of

Hon'ble Kerala High Court has not been noticed there.

6. In present matter I am concerned with valuation of

suit only in which a valid counter-claim is raised. The

counterclaim is essentially co-related with plaint claim and also

at times warrants adjudication as an independent suit.

Legislature has found it necessary to have such separate trial of

counterclaim by same court. Hence, this ceiling on and reference

of pecuniary jurisdiction in proviso to O. VIII R.6A to see that by

filing a counterclaim, the defendant does not oust the

jurisdiction of trial court approached by the plaintiff. Said

proviso does not envisage a counterclaim only for balance of

pecuniary jurisdiction of concerned court left unexhausted by the

plaintiff or only if it is so left unexhausted. If arguments of

Petitioner are to be accepted, it would be re-writing the legal

provisions in O.VIII R.6A,CPC. Pecuniary jurisdiction is required

to be satisfied independently by claim made in plaint and claim

raised in counterclaim. Court fee is also required to be paid

separately on both. There is no question of clubbing both

together for said purpose.

7. Same immovable property forms subject matter of

suit for specific performance instituted by Petitioner and of

counterclaim lodged by Respondents for recovery of possession

and damages by evicting him i.e. Petitioner. Had Respondents

filed a separate Suit (instead of counterclaim) it would have

been tried by Civil Judge, Junior Division at Warud only as

within its pecuniary jurisdiction. Consolidation of such

separately instituted suit with his suit for specific performance

also would not have enabled Petitioner - Plaintiff to urge that

valuation of subject matter has doubled or increased. Suits

whether separate or in the shape of suit and counterclaim relate

to same immovable property. Trial Court has rightly appreciated

the situation. There is no jurisdictional error or perversity.

Petition is, therefore, without any merit and no case is made out

necessitating interference by this Court.

8. Writ Petition is, therefore, dismissed. Rule

discharged. However, in the facts and circumstances of the case,

there shall be no order as to costs.

JUDGE

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*dragon/GS.