Bombay High Court
Shri. Shankar Masu Dokare vs Shobha Subhash Dokare And Anr on 10 December, 2014
Bench: R.M. Savant
wp-4658.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4658 OF 2013
Shri Shankar Masu Dokare ]
Age 81 years, Occupation Retired ]
Residing at 3, Shankar Prakash ]
Building, Navin Nagardas Road, ].... Petitioner
Andheri (East), Mumbai ](Org. Respondent.
Versus
1] Shobha Subhash Dokare ]
Age 54 years, Occ : Household
ig ]
Residing at 101, Classic Building ]
Manjrekarwadi, M V Road, Andheri]
(East), Mumbai ]
]
2] Smt. Siddhavabai Arjunappa ]
Umbarje, Adult, Occ : household ]
Residing at Auj. Taluka South ].... Respondents
Solapur, District Solapur ](Org. Defendants)
Shankar Masu Dokare : Petitioner
versus
Shobha Subhash Dokare and anr. : Respondents.
Mr. Surel S Shah for the Petitioner.
Mr. Amit B Borkar for the Respondents.
CORAM : R. M. SAVANT, J.
DATE : 10th December 2014.
ORAL JUDGMENT
1 Rule, with the consent of the learned Counsel for the parties made
returnable forthwith and heard.
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2 The writ jurisdiction of this court is invoked against the order
dated 23/4/2013 passed by the learned Ad hoc District Judge-2 Solapur by
which order the Application (Exhibit 15) for amendment of the Appeal being
Civil Appeal No.325 of 2012 came to be allowed and resultantly, the
Respondents herein were held entitled to amend the Appeal in terms of the
amendment sought vide the said Application (Exhibit 15).
3 Shorn of unnecessary details, a few facts can be stated thus :-
The Petitioner herein is the original Plaintiff who had filed the suit
in question being Special Civil Suit No.110 of 2005 for a declaration that the
Petitioner is the owner of the entire suit property, and for cancellation of the
sale deed executed by the Defendant No.2 i.e. the Respondent No.1 herein who
is his daughter in favour of the Defendant No.4. i.e. the Respondent No.2
herein. In the said suit counter claims came to be filed by both the Defendant
No.2 and the Defendant No.4. In so far as the Defendant No.2 is concerned,
she claimed a declaration that she has got 1/4th share in the suit property, and
in the alternative the suit property be partitioned. In so far as the Defendant
No.4 is concerned, she sought the relief of partition of the suit property
pursuant to the sale deed executed by the Defendant No.2 in her favour.
4 After going through the gamut of a trial, the suit in question came
to be decreed by the Trial Court in favour of the Plaintiff by the judgment and
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order dated 31/3/2007 passed by the learned Civil Judge, Senior Division,
Solapur. However, in so far as the counter claims of the Defendant No.2 and
the Defendant No.4 are concerned, their counter claims came to be dismissed.
5 Aggrieved by the decreeing of the suit by the judgment and order
dated 31/3/2007 the Defendant Nos.2 and 4 i.e. the Respondent Nos.1 and 2
herein filed an Appeal in this Court being First Appeal No.2155 of 2007
challenging the said decree. In the context of the issue which arises in the
present Petition, it is required to be noted that in Ground (B) of the memo of
the First Appeal, the Respondents/Appellants have raised a challenge to the
dismissal of the counter claims. There are other grounds in the Memo of
Appeal which question the findings recorded on the issues which arise on
account of the counter claims and which are concerning the Defendant Nos.2
and 4. It is not necessary to refer to the said grounds as the Ground (B) can be
said to be an over imposing ground questioning the dismissal of the counter
claims.
6 At this stage it is required to be noted that the adjudication is one
and the finding recorded is in respect of the suit property by which the Trial
Court has held that the title vests with the Plaintiff. After the pecuniary
jurisdiction of the District Court was enhanced pursuant to the amendment to
the Bombay Civil Courts Act, the said First Appeal No.2155 of 2007 was
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transferred to the District Court, Solapur. After the transfer of the said First
Appeal to the District Court, Solapur, the Respondents/Appellants moved the
instant Application (Exhibit 15) for amendment of the Appeal memo to add
paragraph (iv) after paragraph (iii). In the said paragraph (iv) by way of
prayer clause (a) the Appellants have prayed that the Appeal be allowed and
by way of prayer clause (b) the Appellants have prayed for setting aside the
judgment and order dated 31/3/2007, the suit be dismissed and the counter
claims of the Defendant Nos.2 and the Defendant No.4 may be allowed with
costs throughout.
7 The said Application (Exhibit 15) was opposed to on behalf of the
original Plaintiff i.e. the Petitioner herein by filing a Reply (Exhibit 16). In the
said reply, the Plaintiff objected to the amendment sought on the ground that
by way of amendment three Appeals were sought to be converted into one;
that the issue of limitation and the issue of jurisdiction also arise in view of the
amendment.
8 The Trial Court considered the said Application (Exhibit 15) and
has by the impugned order dated 23/4/2013 allowed the same. Whilst
allowing the said application, the Trial Court held that since there was one
trial, one finding and one decision in respect of the suit and the counter claims,
there need not be two Appeals even though the decrees may have been drawn
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up. The Trial Court relied upon the judgment of the Apex Court reported in
AIR 1950 SC 419 in the matter of Narhari and others v/s. Shankar and
others. The Trial Court also placed reliance on the judgment of a learned
Single Judge of Kerala High Court reported in AIR 2007 Kerala 69 in the
matter of Pampara Philip v/s. Koorithottiyil Kinhimohammed wherein the
learned Single Judge has held that where a counter claim filed by the
Defendants is dismissed and the plaint claim is allowed, the Defendants need
not file separate Appeals but a single Appeal challenging both the findings is
maintainable, and that the valuation of Appeal would be on the basis of the
combination of suits plus counter claim and the court fees would have to be
paid accordingly. The Lower Appellate Court held that since the Appellants
have challenged the decree passed in the suit as well as the dismissal of the
counter claims, they are entitled to maintain one Appeal. As indicated above,
it is the said order dated 23/04/2013 which is taken exception to by way of the
above Appeal.
9 Heard the learned counsel for the parties. The learned counsel for
the Petitioner Shri Surel Shah would reiterate the case of the Petitioner before
the Trial and would submit that since there is a decree in the suit and the
decree in the counter claims, the Appellants i.e. the Respondents herein were
required to file two Appeals. The learned counsel would contend that the scope
of the suit and the scope of the counter claim was different, there was no one
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finding recorded and hence the Respondents were required to file two Appeals.
The learned counsel sought to place reliance on Order XLI Rule 1 of the Code
of Civil Procedure which postulates filing of one copy of the judgment if the
suits are tried together and two decrees are passed. The learned counsel also
placed reliance on Order XX Rule 19 of the Code of Civil Procedure where it is
posited that the decree passed in a suit in which a counter claim is filed shall
be subject to the same provisions in respect of an Appeal. This provision the
learned counsel for the Petitioner wants to invoke so as to extend the
proposition to the factum of filing of a separate Appeal in respect of the decree
passed in the counter claim.
10 Per contra, the learned counsel for the Respondents Shri Amit
Borkar would support the impugned order. The learned counsel would draw
my attention to the grounds of Appeal in the Appeal as originally filed wherein
there is a specific ground taken as regards rejection of the counter claims as
also as regards the findings recorded by the Trial Court in respect of the
counter claims of the Defendant No.2 and the Defendant No.4. The learned
counsel in support of his submission that there is no warrant to file separate
Appeals sought to place reliance on the judgment of the Apex Court in the
Narhari and others' (supra) as also the judgment of a learned Single Judge of
the Kerala High Court in Pampara Philip's case (supra).
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11 Having heard the learned counsel for the parties, I have
considered the rival contentions. The question that is posed is whether the
Appellants were required to file separate Appeals in respect of the decree
passed in the suit and in respect of the decree passed in the counter claims. It
is required to be noted that the controversy in the suit revolves around the suit
property which the Plaintiff claims to be his exclusive property. In view thereof,
the Plaintiff i.e the Petitioner herein had challenged the sale deed executed by
his daughter i.e. the Defendant No.2 in favour of the Defendant No.4 on the
ground that the Defendant No.2 did not have any right in the property so as to
execute the sale deed in favour of the Defendant No.4. The Defendant No.2 in
her counter claim had sought a declaration that she has 1/4 th share in the
property and in the alternative had prayed for partition of her said 1/4 th share
in the said suit property. The Defendant No.4 who is the purchaser from the
Defendant No.2 also sought partition of the 1/4th share which she has
purchased from the Defendant No.2. Hence the controversy was revolving
around the suit property and it was not a case where the reliefs claimed by the
Plaintiff and the reliefs claimed by the Defendants were different in their
content vis-a-vis the suit property. It is an undisputed position that the counter
claims were tried along with the suit and a common judgment was rendered by
the Trial Court i.e. allowing the suit and dismissing the counter claims filed by
the Defendant No.2 and the Defendant No.4. It is further required to be noted
that in the Appeal as original filed the challenge has been raised to the decree
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by incorporating a specific ground being Ground (B) wherein the dismissal of
the counter claims is questioned. There are also other grounds in the Appeal
memo wherein the findings relating to the counter claims are challenged.
Hence in the Appeal as originally filed, it can be said that the same was filed
against both the decree passed in the suit as well as the counter claims. Hence
it is not as if for the first time that by the amendment a challenge to the
dismissal of counter claim is raised by the Appellants. The amendment sought
as can be seen was as and by way of incorporating prayer clauses (a) and (b)
in the Appeal Memo i.e. the Appeal be allowed and dismissal of the counter
claim be set aside. Such is not the practice followed in this Court as the
Appeals filed in this Court do not contain any prayer except the grounds on
which the decree is challenged. May be after the Appeal was transferred to the
District Court out of abundant caution the advocate for the Appellants who was
appearing for them in the District Court sought to incorporate the said two
prayers which appear in paragraph (vii) which is now sought to be
incorporated by way of the amendment application. However, the application
for inclusion of the said prayer cannot be construed in a manner to suggest
that originally there was no challenge to the decree passed in the counter
claims as the challenge to the dismissal of the counter claims is ex-facie clear
from the reading of Ground (B) of the grounds in the Memo of Appeal as
originally filed. Hence in the instant case there is no question of issue of
limitation or issue of jurisdiction, res-judicata arising as the challenge in the
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Appeal as originally filed was composite i.e. both to the decreeing of the suit
and the dismissal of the counter claims.
12 Now coming to the judgment of the Apex Court in Narhari and
others' case (supra), the Apex Court in paragraph 5 has observed that It is now
well settled that where there has been one trial, one finding and one decision,
there need not be two Appeals even though two decrees may have been drawn
up. The observation of the Apex Court in Narahari's case therefore applies in
all fours to the facts of the instant case wherein there was one trial, one finding
and one decision as regards the property and therefore the Appellants were not
required to file separate Appeals. In so far as the judgment of a learned Single
Judge of the Kerala High Court in Pampara Philip's case is concerned, though
the said judgment is not directly on the point as to whether one Appeal is
maintainable, the Appellants can draw support from the said judgment in the
light of the fact that the learned Single Judge of the Kerala High Court has held
that if the claim in the counter claim is dismissed and the suit claim is allowed,
then there is no warrant to file two Appeals but what is required to be done is
that the valuation has to be composite i.e. the valuation of the suit and counter
claim, and court fees have to be paid accordingly. In my view, the judgment
lends support to the case of the Appellants inasmuch as in the instant case also
the suit claim has been allowed and the counter claims have been dismissed.
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13 In so far as the provision of Order XLI Rule 1 of the Code of Civil
Procedure is concerned, the same can be said to be in the nature of enabling
the provision which obviates the need to file separate copies of the judgment
and decree. In so far as the provision of Order XX Rule 19 of the Code of Civil
Procedure is concerned, what is posited therein cannot be extended so as to
contend that there is a requirement of filing of two Appeals. There can be no
dispute about the fact that the decree in the counter claim has also to be
challenged within limitation. In the instant case as indicated above the Appeal
memo as originally filed contained common grounds of challenge for both the
decree in the suit as well as a counter claims. Hence as rightly observed by the
Trial Court no question of limitation arises. In the facts of the present case
where there was one trial, one finding, filing of one Appeal cannot be said to
be in contravention of any of the provisions of the Code of Civil Procedure.
This is not a case where the reliefs sought by way of counter claims had
nothing to do with the subject matter of the suit or that the counter claims
were directed against some parties who are not parties to the suit or against
whom the Plaintiffs were not claiming reliefs. The order passed by the Lower
Appellate Court therefore cannot be said to suffer from any error of jurisdiction
or any other infirmity or illegality for this Court to interfere in its writ
jurisdiction. The above Writ Petition is accordingly dismissed. Rule discharged
with parties to bear their respective costs of the petition.
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14 In the light of the fact that the Petitioner herein i.e. the original
Plaintiff is 83 years of age, the hearing of the Appeal which is of the year 2007
is expedited and is directed to be disposed of latest by 31st March 2015.
[R.M.SAVANT, J]
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