Bombay High Court
Anantrao Vinayakrao Joshi And Anr vs Govind Ambadasrao Kulkarni And ... on 24 April, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.542 OF 2012
1. Anantrao s/o Vinayakrao Joshi APPELLANTS
Age - 65 years, Occ - Retired
R/o Asarjan, Taluka and District - Nanded
2. Harishchandra s/o Madhavrao Tribhuvan,
Age - 66 years, Occ - Retired
R/o Bisen Nagar, VIP road, Nanded
VERSUS
1. Govind s/o Ambadasrao Kulkarni, RESPONDENTS
Age - 58 years, Occ - Advocate,
R/o Somesh Colony, Behind Kalamandir,
Nanded
2. Nalini w/o Govind Kulkarni,
Age - 56 years, Occ - Teacher,
R/o As above
3. Devprakash s/o Devidas Tuganwar,
Age - 45 years, Occ - Service
R/o Somesh Colony, Behind Kalamandir
Nanded
.......
Mr. C. V. Korhalkar h/f Mr. Vijay Sharma, Advocate for appellants
Mr. H. I. Pathan, Advocate for respondents No. 1 and 2
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 24th APRIL, 2017
ORAL JUDGMENT :
1. Heard Mr. C. V. Korhalkar, learned advocate holding for Mr.
Vijay Sharma, appearing on behalf of the appellants and Mr. H. I.
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Pathan, learned advocate for respondents No. 1 and 2.
2. Appellants are before this court in second appeal aggrieved
by order dated 1st October, 2011 passed by District Judge - 1,
Nanded on applications Exhibits - 4, 11 and 15 in Regular Civil
Appeal No. 57 of 2010.
3. Applications Exhibits - 4 and 11 question maintainability of
Regular Civil Appeal No. 57 of 2010 with reference to Order XLI,
Rule 11 and section 11 of the Civil Procedure Code and for
appellant No. 2 is said not to be possessing power for appellant
No. 1 while lodging of appeal, since no power of attorney had
been filed along with the appeal. Exhibit - 15 is application for
grant of stay operation of decree during appeal.
4. Parties hereto for convenience would be referred to by
their status in regular civil suit No. 358 of 2000 viz., respondents
No. 1 and 2 as plaintiffs No. 1 and 2, appellants No. 1 and 2 as
defendants No. 1 and 2 and respondent No. 3 as defendant
No.3.
5. Succinct reference to background would facilitate proper
appreciation of the matter. Regular Civil Suit No. 358 of 2000
had been instituted by plaintiffs - present respondents No. 1 and
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2 seeking declaration that respondents are owners and in
possession of suit property as well as proceedings before rent
controller bearing No. 3 of 2000 for restoration and other
proceedings for possession of suit house by defendants - present
appellants were without jurisdiction and would not bind plaintiffs
and for mandatory injunction against defendant No. 3.
6. Plaintiffs have asserted, defendant No. 1 had issued a
notice dated 10th January, 1987 claiming that plaintiffs No. 1 and
2 who have occupied suit premises as trespassers, after expiry
of two months from 1st June, 1984. In reply to the notice,
plaintiffs purported to deny title of defendant No. 1 to suit
property claiming possession of plaintiffs over suit house being
adverse to the knowledge of defendant No. 1. Ownership of
defendant No. 1 stood extinguished and the plaintiffs in the
process, had acquired ownership over suit house by adverse
possession. It is further claimed that sale deed executed by
defendant No. 1 in favour of defendant No. 2 dated 19 th
November, 1987, is with the knowledge of possession of plaintiffs
over suit premises running adverse. It is denied that there is
transfer of title under the sale deed to defendant No. 2. Suit
having not been instituted within twelve years from 1 st August,
1984 or for that matter from 19th November, 1987, the right of
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defendant No. 2 to recover possession stands extinguished,
plaintiffs having become owners by adverse possession to the
knowledge of defendants No. 1 and 2. Defendant No. 2 is not a
bona fide purchaser. The plaintiffs have instituted proceeding for
specific performance which is pending in appeal. Yet situation
about defendants No. 1 and 2 claiming plaintiffs to be
trespassers does not get altered and the claim in the other
litigation, referred to hereinbefore, is different. The plaintiffs
have further averred that defendant No. 3 has constructed a
building, keeping ventilators illegally on the common wall, which
has been causing nuisance and, as such, a relief of mandatory
injunction for closing ventilators was also sought.
7. Plaintiffs have averred about and referred to certain other
litigations before different fori and have claimed that right of
possession of the defendants in the process having been
extinguished and the other proceedings pending are without
jurisdiction.
8. Defendant No. 3 (present respondent No. 3) has not filed
written statement.
9. Defendants No. 1 and 2 have resisted the suit by filing
written statement and have made a counter claim.
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10. Defendants No.1 and 2 have denied the pleadings of the
plaintiffs and have averred that defendant No. 1 had been owner
of suit property who has sold the same in favour of defendant
No. 2 for a valuable consideration, under registered title transfer
deed dated 19th November, 1987 and since then, defendant No.2
is the owner. Defendant No. 2 had instituted proceedings for
eviction of plaintiff No. 2 before rent controller. Plaintiff No. 1
had filed a false suit for specific performance, which has been
dismissed and appeal therefrom has been dismissed in default.
During pendency of said appeal, the plaintiffs had filed
application for amendment, but the same was rejected.
Defendant No. 1 had filed suit against plaintiff No. 1 for recovery
of arrears of rent, which came to be decreed. Defendant No. 1
had filed petition for eviction against plaintiff No. 1 but during its
pendency, sold suit house to defendant No. 2 and defendant No.
2 had independently filed eviction proceedings against plaintiff
No. 1. They have denied that plaintiffs have become owners by
adverse possession and have further denied that their ownership
got extinguished. It was averred that plaintiffs have no right of
ownership over suit property and the suit could not have been
instituted by them. Defendants, as such, prayed for dismissal of
the suit.
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11. Defendants No.1 and 2 have made a counter claim seeking
possession of the suit property and mesne profits. It is avered,
cause of action for counter claim arose around 2000 referring to
certain events.
12. In their written statement to counter claim, plaintiffs
denied claims of the defendants, inter alia, stating that the right
to recover possession of suit property stands extinguished and
that other litigation in respect of specific performance does not
impinge on the rights of the plaintiffs in present suit. It is
claimed that dismissal of suit by plaintiffs against defendant No.
1 for specific performance is not final and does not operate as
res judicata against the plaintiffs. Defendants are not entitled to
mesne profits as claimed. There is disparity in the price of suit
house as mentioned in the counter claim and as contended in
written statement and thus prayed for dismissal of the counter
claim.
13. Trial court framed following issues and recorded finding
against the same.
ISSUES FINDINGS
01 Whether plaintiffs are owners in possession of The plaintiff is owner in
suit house ? possession of suit house
against the defendant No.1
02 Whether plaintiffs are entitled to relief of In affirmative against
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declaration that they are in possession of suit defendant No.1 and in
house ? negative against defendant
No.1
03 Whether plaintiffs are entitled for relief of Affirmative
perpetual injunction restraining defendants
from causing interference and obstruction
over suit house ?
04 Whether the rent controller, Nanded has no Negative
jurisdiction to consider restoration case No.
3/2000 ?
05 Whether plaintiffs are entitled for declaration Negative
that rent control proceeding No. 3/2000 is
without jurisdiction ?
06 Whether plaintiffs are entitled for relief of Affirmative
perpetual injunction restraining defendants
No. 1 and 2 to alienate or create any kind of
encumbrance over the suit house ?
07 Whether plaintiffs are entitled for relief of Affirmative
mandatory injunction as claimed ?
08 Whether Counter Claim of defendants No. 1 Dose not survive
and 2 is barred by Article 67 of Limitation
Act ?
09 Whether right to property of defendants No.1 Affirmative against
and 2 is extinguished under Sect. 27 of defendant No.1 and in
Limitation Act ? negative against defendant
No.2
10 Whether counter claim of defendants is barred Doest not survive
due to adopting remedy through rent
controller for relief of possession of suit
house ?
11 Whether defendants are entitled for recovery Does not survive
of possession of suit house ?
12 Whether defendants are entitled for mesne Does not survive
profits as claimed ?
13 What order and decree ? Suit of plaintiff is decreed
partly with costs
14. Trial court has decreed the suit partly. Operative order
dated 30th August, 2007 reads as under
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ORDER
1. The suit of plaintiff is decreed partly with costs as under.
2. The defendant No. 3 is hereby directed to close the ventilation kept
at the common wall side of the suit house No. 2-9-102 situated at
Somesh Colony behind Kalamandir, Nanded.
3. Defendants are hereby perpetually restrained from causing any
obstruction and interference in the possession of plaintiff over the
suit house.
4. Defendants No. 1 and 2 are hereby perpetually restrained from
selling or creating any encumbrance over the suit house ?
5. It is hereby declared against defendant No. 1 that the plaintiff No.
1 is owner in possession of suit house.
6. The claim of plaintiff of declaration of ownership against
defendant No. 2 is hereby dismissed.
7. The claim of plaintiff for declaration that Rent Control
Proceeding No. 3/2000 for restoration or any other proceeding
for possession of the suit house is without jurisdiction and is not
binding upon the plaintiffs is hereby dismissed.
8. Decree be drawn up accordingly.
9. Counter-Claim of defendant Nos. 1 and 2 is dismissed in default.
15. Aggrieved by aforesaid decision of the trial court, original
defendants No. 1 and 2 had preferred appeal with some delay,
which appears to have been condoned and the same is bearing
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Regular Civil Appeal No.57 of 2010. Original plaintiffs have put in
their appearance in the appeal.
16. Original plaintiffs - present respondents No. 1 and 2 have
questioned maintainability of appeal by filing applications
Exhibits - 4 and 11 as referred to above, contending that
counter claim had been filed by present appellants claiming relief
of possession and the same had been dismissed. There is no
appeal against dismissal of counter claim. Under operative order
and findings recorded on issues No. 6 to 9, it has been
considered that appellants have not proved their title on the
basis of sale deed and have further failed to prove relationship of
landlord and tenant. It is claimed, it has been declared under the
decree that respondents No. 1 and 2 (original plaintiffs) to be
owners and that relationship of landlord - tenant is not
established, which according to them is particularly with
reference to the counter claim. Thus, finding given against
appellants in the absence of appeal against counter claim would
operate as res judicata based on common judgment. Madras
High Court decision in the case of "Arumugha Nainar V/s Lokshmana
Perumal" reported in AIR 1992 Madras 280 had been referred to and
relied on. In the applications it had been contended that issues
of counter claim have been not answered in favour of appellants,
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as such, it should be treated to have been refused and in the
absence of appeal against dismissal of counter claim, present
appeal has been, under the circumstances, rendered not
maintainable. It further has been claimed that decree of
dismissal in Suit No. 124 of 1989 for specific performance being
not final as well as decision in suit No. 230 of 1987 being not
enforceable, findings recorded therein do not go against plaintiffs
- respondents and, as such, it has been urged to consider that
appeal is not maintainable.
17. Appellate court while deciding said two applications has
considered that appellant No. 2 has failed to prove his ownership
and possession of suit premises, since having failed to prove his
alleged sale deed. Although judgment of the counter claim is
shown to be as dismissal in default, however, having gone
through entire evidence and findings on the other issues, some
of the issues were held by the trial court appear to be not
surviving as appellant No. 2 has not proved sale deed, therefore,
issues were not decided. It further appears to have been
considered that appellants sought relief of possession, which was
denied and as per section 11 explanation V of the Civil Procedure
Code, any relief claimed in the plaint, which is not expressly
granted by the decree, shall be deemed to have been refused.
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No appeal has been filed by the appellants against denial of relief
under the counter claim. Finding recorded by lower court in
respect of those issues, having not survived, have in the process
become final. Appellate court further has referred to an order in
second appeal No.1231 of 2004 of this high court. According to
learned advocate Mr. Pathan, it is held in said judgment that two
separate appeals, from decision in suit and counter claim, ought
to be preferred and in the absence of challenge in separate
appeal against decision of counter claim, decision in the same
had been rendered final and as such, the appeal against decree
in suit would not be maintainable.
18. Appellate court has further observed that photo copy of
general power of attorney had been filed and original document
had not been before the court. As such, it cannot be considered
that any appeal is preferred by appellant No. 1 and as such,
issues decided against appellant No. 1 cannot be considered in
appeal filed by appellant No. 2.
19. Considering aforesaid, applications Exhibits - 4 and 11
were allowed and the appeal came to be dismissed holding the
same to be not maintainable.
20. Mr. Korhalkar, learned advocate contends that the appeal
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could not have been dismissed as not maintainable for the
reasons as are given. According to learned advocate, once
appeal has been filed and notices are issued, those are liable to
be decided according to the prescribed procedure under the Civil
Procedure Code and not otherwise. He submits, in particular, if it
is assumed as contended on behalf of plaintiffs No. 1 and 2 that
appeal has been preferred against the judgment in the suit,
having regard to the issues as were framed and the counter
claim as had been filed, dismissal of the counter claim in the
present matter would not impinge upon prosecution against
decree passed in the suit. He submits, perusal of the issues and
the operative order, reproduced hereinbefore, would show that
the counter claim has been dismissed in default and there is no
decision on merits so far as issues which relate to the counter
claim. He, therefore, submits that issues on which findings have
been recorded against defendants No. 1 and 2 in the suit, are
amenable decision in the appeal preferred against the decree in
suit and would circumscribe incidental observations therein.
Appellate court is a higher court and issues and findings thereon
are not reexamined by the higher forum. Thus, question of
findings having become final in absence of express challenge to
the decree in counter claim is inconceivable proposition in the
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facts and circumstances of the case. Findings against appellants
are matter of challenge and focus in the appeal and thus
contention on behalf of plaintiffs No. 1 and 2 with reference to
Madras High Court judgment would absolutely have no
application to the present case, nor can any analogy be drawn
from the judgment of the Madras High Court as would be
applicable to the facts of the present case. He, therefore,
submits that the question of maintainability of appeal on that
count even does not arise in the present matter. However,
appellate court has failed to appreciate these vital aspects
required to be considered in the matter. He submits, the appeal
has been preferred by defendants No. 1 and 2, who had filed
joint written statement. Furthermore, he submits that
defendants No. 1 and 2 during the course of appeal have indeed
filed a photo copy of power of attorney. He submits that the fact
of appeal being by defendants No. 1 and 2 i.e. present
appellants No. 1 and 2 gets endorsed by the act of filing present
second appeal by both the appellants. In the circumstances,
objection being taken about appeal being not by defendant No. 1
is an objection of very technical nature, however, there is no
substance in the same in the given facts and circumstances of
the case.
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21. Over and above, he submits that as stated aforesaid, there
is no intervening stage contemplated to decide maintainability of
appeal and if at all maintainability of appeal is to be questioned,
hearing about the same has to take place along with hearing of
appeal itself. No separate stage is envisaged nor can it be
resorted to while appeal is being decided.
22. He purports to point out that decision relied on of the
Madras High Court has different factual background and
observations of the court are in the background of the facts and
circumstances of the case, wherein, in the two suits there
appeared to be common questions with regard to title, and were
decided separately against the respondent before high court and
challenge to the decision on the issue with regard to title had
been posed before first appellate court only in respect of one of
the suits. It is in that circumstances decision appears to have
been rendered by Madras High Court.
23. In the present matter, according to him, even if it is
assumed that issues in the suit have been decided against
interest of the defendants, yet defendants have challenged
findings in the appeal. It is not a case wherein a decision in the
counter claim has been a decision on merits to which no
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challenge ostensibly has been posed. Decision in counter claim
being not on merits would seldom be a case giving rise to
application of doctrine of res judicata.
24. Countering aforesaid submissions, Mr. Pathan, learned
advocate appearing for respondents No. 1 and 2 - plaintiffs,
submits that in the present matter it is an admitted position that
there is no challenge posed to dismissal of counter claim by
appellants No. 1 and 2. The trial court has held that defendant
No. 2 could not have title to suit property. Decision in respect of
the same gives an indication of that the claim by defendant No.
2 in the counter claim to quite a large extent having discussed
and decided. He, therefore, submits that since there is no
challenge to dismissal of counter claim, decision given by the
trial court in the suit would intervene and create an embargo on
consideration of appeal and operate as res judicata.
25. Mr. Pathan submits that counter claim is as good as a
cross / separate suit and in the circumstances, decision of the
Supreme Court in the case of "Sheodan Singh V/s Daryao Kunwar"
reported in AIR 1966 SC 1332 would hold sway over present matter.
For said purpose, he refers to and relies on head note "C",
reading, thus -
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" C. Civil P. C. (5 of 1908), S. 11 - Heard and finally decided - Two suits
having common issues - Suits decided by trial Court on merits - Two
appeals filed therefrom - One of them dismissed on ground of limitation
or default printing - decision of Appeal Court will be res judicata.
Where the trial Court has decided two suits having common issues on the
merits and there are two appeals therefrom and one of them is dismissed
on some preliminary ground, like limitation or default in printing, with
the result that the trial court's decision stands confirmed, the decision of
the appeal court will be res judicata and the appeal court must be
deemed to have heard and finally decided the matter. In such a case the
result of the decision of the appeal court is to confirm the decision of the
trial court given on merits, and if that is so, the decision of the appeal
court will be res judicata. "
26. In addition to aforesaid, he contends that judgment of the
Madras High Court, referred to supra had been properly
considered by the appellate court and would apply to the facts of
the present case.
27. During the course of submissions, learned advocate Mr.
Pathan has referred to an order, namely second appeal No. 1231
of 2004 in order to support his contention that appeal would not
be maintainable, which has been referred to by the appellate
court.
28. After hearing learned advocates for the parties, following
question may substantially arise for consideration in the second
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appeal-
" Whether in the facts and circumstances of the case, the matter is liable to
be remanded to the appellate court for consideration of regular civil
appeal on merits, afresh ? "
29. Plaintiffs' pleadings show, they claim ownership over suit
property claiming themselves to be in adverse possession and
also claim extinguishment of rights of defendants in the suit
property. They claim, while in the notice by defendant No. 1,
possession of plaintiffs has been referred to by defendants as
that of trespassers and them having not instituted proceedings
within twelve years, plaintiffs acquire rights of ownership over
suit property and rights of defendants get extinguished. While
this is their case, plaintiffs have referred to quite a few
proceedings pending among parties to the suit and over and
above the same, also claim that those proceedings to be out of
jurisdiction of the courts concerned. With reference to the same,
issues No. 4 and 5 had been framed and the same had been held
against interest of plaintiffs giving a negative finding. That apart,
plaintiffs' pleadings also further refer to proceeding at their own
instance for specific performance, which appears to have been
instituted after notice in 1987 by defendants to plaintiffs.
Plaintiffs' suit for specific performance in the court of first
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instance has met with failure. It is contended on behalf of the
plaintiffs that an appeal therefrom is pending and an application
for amendment on their behalf has been rejected.
30. It is not disputed that defendant No. 1 has had instituted
proceedings after 1984 for recovery of rent and eviction and also
proceedings have been instituted by defendants No. 1 and 2 for
eviction and / or possession. Some of them are pending.
31. The appellate court does not appear to have dwelt on the
very concept of ownership by adverse possession, whether mere
lapse of twelve years would result into ownership of the occupier
or alleged statement in the notice would clinch the issue or
plaintiffs have ever asserted ownership in hostility to title of
defendants or for that matter, the subsequent proceedings,
events and occurrences are absolutely insignificant.
32. Claim of adverse possession will have to be adjudged also
with reference to legal position as to whether plaintiffs can lay
claim by a suit for such declaration, looking at the decision of
the Supreme Court in the case of Gurudwara Sahib vs Gram Panchayat
Village Sirthala and Another, reported in (2014) 1 SCC 669.
33. A reference will have to be made to that issues framed, as
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quoted hereinabove, wherein issues in respect of defendants'
counter claim appear to have been held to be not surviving and
the counter claim stands dismissed in default.
34. Burden had been on the plaintiff to be discharged, it
appears, in respect of issues No. 1 to 10, albeit, issues No. 8 and
10 are held to be not surviving. Issues No.11 and 12, which
appear to pertain to counter claim have been held to be not
surviving. It is not the case of the plaintiffs - respondents that
there is no appeal by defendants / appellants against the decree
passed in the suit by plaintiffs.
35. Appellate court appears to have considered that appellant
No. 2 has failed to prove ownership and possession over suit
property. No particular issue in this regard appears to have been
framed.
36. Appellate court appears to have considered that the
appellants' case stands debarred from being prosecuted in
appeal on the principles analogous to res-judicata.
37. The situation, it appears, clearly emerges that there is no
decision on merits at all, so far as counter claim is concerned.
Claim of the defendants, as such, for recovery of possession
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appears not to have been considered due to default of
appearance on behalf of the defendants. In the circumstances, it
is difficult to conceive that decision so rendered in their absence
can be a decision on merits of the case. As such, efficacy and
sustainability of the decision, though contended to be against
the interest of defendants No. 1 and 2, would not be
determinative about maintainability of appeal on the grounds
agitated on behalf of appellants - defendants No. 1 and 2.
38. While the appellate court appears to have considered in
the absence of challenge to dismissal of counter claim, findings
recorded and decision in the suit would operate as res judicata
with regard to claims of defendants - appellants. Here also, one
may have to consider that the decision in the suit on merits has
not reached finality while appeal is pending. In the present
matter decisions hitherto would show that the trial court has
considered while deciding issues No. 4 and 5, proceedings are
not liable to be declared as outside jurisdiction of the concerned
courts which have been instituted by the defendants claiming
property and as such, dismissal of counter claim in default would
not foreclose decision in those proceedings. Appellate court has
not considered this salient aspect.
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39. Ostensibly may be it is a case that the regular civil appeal
takes under focus the decree passed in the suit, while counter
claim has been dismissed in default, it can hardly be said that
dismissal of counterclaim not being challenged, decision on the
issues as not surviving would operate as res-judicata so far as
appeal is concerned.
40. Even if it is assumed that case for resistance to maintain
the appeal may arise, yet one will have to consider that an issue
of res-judicata is a mixed question of facts and law. In the present
matter, it does not appear to be a case where a particular point
in this respect had been framed and parties were allowed to lead
evidence on the same.
41. Appellate court has assumed, in the absence of appeal on
behalf of the appellant No. 1, the issues decided against
appellant No. 1, cannot be challenged in the appeal filed by
appellant No. 2.
42. Appellate court has missed out on that appellant No. 2 is
purchaser of the property and he was defendant No. 2 in the suit
and he is aggrieved by decision rendered by the trial court in the
suit. He along with defendant No. 1 - appellant No. 1 is shown
to have lodged the appeal challenging decree passed in the suit.
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Even if for the sake of arguments, it is considered that the
appeal is not by appellant No. 1, yet appellant No. 2, as a
aggrieved party, would be able to lay challenge to decree passed
in the suit. Appellant No. 2 cannot be said to be precluded from
challenging decision in the suit, in the absence of appellant No.
1, in respect of findings against appellant No. 1.
43. The other aspect that will have to be considered which
appears to have weighed with the appellate court is about
empowerment of appellant No. 2 to prosecute the matter along
with appellant No. 1 in the absence of any power of attorney. It
appears to be a case, may be while appeal had been preferred
appellant No. 2 had not placed on record authorization to lodge
and prosecute the appeal on behalf of appellant No. 1, yet
subsequently this deficiency, to quite some extent, at this stage,
appears to have been removed by submitting a photocopy of
power of attorney. Empowerment / authorization of appellant
No. 2 gets further re-enforced by filing present second appeal by
appellant No.2 along with appellant No. 1. In this background,
the objection on that count appears to be technical in nature.
44. Learned advocate for the respondents relied on a decision
of the Supreme Court in the case of "Sheodan Singh V/s Daryao
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Kunwar" reported in AIR 1966 SC 1332, which is a case wherein four
suits having quite a few common issues were decided on merits.
One of the common issues related to rights of parties to suit
properties. Common issue relating to right of suit property was
decided in favour of the respondent (before Apex Court) in four
suits. Four appeals therefrom had been preferred. Two of them
had been dismissed on some preliminary ground like limitation
or failure to remove office objection.
45. Thereupon, an application came to be filed on behalf of the
respondents to dismiss remaining two appeals. Matters were
referred by Single Judge to Full Bench for decision. Full bench
held that there were four appeals originally before High Court,
two of them had been dismissed and the very same issue arise
in the remaining two appeals and considered that situation was
covered by section 11 of the Civil Procedure Code and as such,
the remaining two appeals were considered to be barred by res
judicata. The Supreme Court has endorsed the view of the Full
Bench. Apart from that in the matter concerned before the
Supreme Court it is not in dispute that the decision had been
rendered on merits in the suits. However, in the present matter
such is not the situation. Thus, the Supreme Court had been
dealing with in an entirely different scenario. In the present
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case, it is not the case that the counter-claim of the appellants
has been decided on merits. As such, no analogy can be drawn
from the Supreme Court case as would be applicable in the
present facts and circumstances.
46. Another judgment referred to learned advocate is the case
of "Arumugha Nainar V/s Lakshmana Perumal and Others" reported in AIR
1992 Madras 280, was also a case wherein common issues were
involved in two suits amongst same parties, including the issue
about title to the property. In one of the suits, title of the plaintiff
had been upheld while in the other suit by the defendant
wherein she was plaintiff, her claim to title had been negated.
Defendant had filed only one appeal against declaration of title of
plaintiff and had not filed appeal against dismissal of her claim to
the title. It is in that context, it has been considered that the
appeal filed by defendant against the decision upholding title of
the plaintiff would incur a bar of section 11 of the Civil Procedure
Code. This judgment as well is hardly of any assistance to the
respondents for, decision in counter-claim of the appellant is not
a decision on merits.
47. An order in Second Appeal No.1231 of 2004 dated 29 th
July, 2005 of this Court referred to and relied on by learned
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advocate for the respondents is in the context that appellant had
filed suit for specific performance of contract and permanent
injunction in respect of suit property. In the same defendant had
filed counter-claim for possession and mesne profits. Suit had
been partly decreed granting relief of refund of earnest amount
with interest as well as counter-claim had been decreed giving
possession of the suit land to the defendant - respondent. An
appeal came to be preferred only against refund of amount. In
the circumstances, an application had been moved by the
respondent objecting to maintainability of appeal, which is in
that context it appears an order came to be passed holding
appeal to be not maintainable, for decree in counter-claim had
been unchallenged. The scenario there had been different than
the one in the present case. In the present matter, may be
ostensibly, appeal is said not to pose challenge to dismissal of
counter-claim, yet, it cannot be overlooked that decision in
counter-claim is not a decision on merits, which would foreclose
the prosecution of appeal filed against the decree assailed.
Coupled with that there have been certain other proceedings
pending for eviction / possession on behalf of the appellants.
Thus, it does not appear that cited decisions would be able to
circumscribe scope of the regular civil appeal filed by the
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appellants and will have to be proceeded with on merits.
48. It is not a case of plaintiffs No. 1 and 2 (respondents No. 1
and 2 herein) that the appeal preferred by present appellants is
not against the decree in the suit and consequently, the findings
given by the trial court on the issues in the suit are wide open
for application of mind, consideration of issues and re-
appreciation of evidence.
49. In the circumstances, if it is considered that challenge in
appeal is confined only to decision in the suit, then merits of the
plaintiffs' case will have to be re-examined and re-appreciated in
the appeal and the findings of the trial court, in the
circumstances, would merge into decision of appellate court. It
would not be a case, in such a case, that dismissal of counter
claim for possession in default, would be able to overwhelm the
decision in the appeal against decision in the suit. The appellate
court has also not considered that landlord - tenant relationship
is not a province of decision by court in the suit, as filed by the
plaintiffs. Jurisdiction in respect of the same rests with a court
acting under the provisions of relevant enactment. The court
ought to have considered that dismissal of the counter-claim in
default being not a decision on merit, would not operate as res
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judicata on the findings recorded in the suit. As such, appellate
court's observation that explanation 5 of section 11 of the Civil
Procedure Code would apply in the matter is an erroneous one.
50. It cannot be said to be a case wherein appellate court has
reconsidered and re-appreciated the case in the suit of the
plaintiffs on merits or has applied its mind to the case pleaded
and the evidence in respect of the same.
51. Appellate court has committed an error in disregarding
appeal absolutely. It had been incumbent in the facts and
circumstances of the case, to consider the appeal on merits, and
had been in error in considering that principle underlying
explanation 5 of section 11 of the Civil Procedure Code would
dis-entitle appellants from challenging decree in the suit.
Appellate court would be required to apply its mind as well as to
whether appellate court would exercise power under Order XLI,
Rule 11 of the Civil Procedure Code as well. It was an error on
the part of appellate court to allow applications and dismiss the
appeal. As such, situation calls for remand of the matter for
decision of the appeal on merits, afresh.
52. In the circumstances, matter, in such case, will have to be
viewed on merits, whereas action about entitlement of the
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plaintiffs to the reliefs with reference to the issues framed.
53. In such a scenario, the decision rendered appears to be
rather cursory. It would not be conclusively said in the present
matter that due to dismissal of the counter claim, the decision in
the suit would acquire finality. On the whole, it emerges that the
appellate court has misconceived the appeal and the
applications.
54. In view of aforesaid, it appears to be expedient that the
order dated 1st October, 2011 impugned in the present second
appeal be set aside, relegating parties to the appellate court for
reconsideration of regular civil appeal No. 57 of 2008 in extenso
along with applications for maintainability of the appeal.
55. The matter deserves to be remanded to the appellate court
and the substantial question of law stands answered accordingly.
Further, the appellate court to proceed with the appeal as
expeditiously as possible and decide the same on merits within a
period of six months from the date of receipt of writ of this
order.
56. As such, order dated 1st October, 2011 in regular civil
appeal No. 57 of 2008 impugned in the present second appeal
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stands set aside. The matter is remitted to appellate court for
decision on merits as well as on applications Exhibits - 4 and 11.
Applications Exhibits - 4 and 11 be decided along with appeal.
The matter be taken up as expeditiously as possible and be
disposed of preferably within a period of six months from the
date of receipt of writ of this order. Application Exhibit-15 stands
restored for decision afresh.
57. In the circumstances, the second appeal stands allowed as
aforesaid.
58. Learned advocate Mr. Pathan for the respondents -
plaintiffs seeks indulgence to stay operation of this order for a
period of six weeks. The operation of this order, as such, shall
stand deferred till a period of six weeks from the date of
reopening of Apex Court after ensuing summer vacation.
[SUNIL P. DESHMUKH, J.]
drp/sa542-12
