Himachal Pradesh High Court
Shri Ramesh Chand vs Jindu Ram And Others Decided On ... on 17 May, 2022
Bench: Mohammad Rafiq, Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17TH DAY OF MAY, 2022
.
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
REGULAR SECOND APPEAL No.57 of 2017
A/W CONNECTED MATTERS
Between:-
1. RSA No.57 of 2017
SHRI RAMESH CHAND
SON OF SHRI KISHAN
CHAND, RESIDENT OF
MAHAL KATHIARA,
MAUJA GARLI, TEHSIL
DEHRA, DISTRICT
KANGRA, H.P.
.....APPELLANT
(BY MR. B.M. CHAUHAN,
SENIOR ADVOCATE WITH
MR.M.S. KATOCH, ADVOCATE)
AND
1. OM RAJ, SON OF SHRI
HARBANS
2. RANJIT SINGH, SON OF
HARBANS
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3. MANBHARI, WIFE OF
RANJIT SINGH
4. JEEVANA, WIFE OF OM
RAJ
ALL RESIDENTS OF
.
MAHAL KATHIARA,
MAUJA GARLI, TEHSIL
DEHRA, DISTRICT
KANGRA, H.P.
.....RESPONDENTS
(BY MR.SANJEEV KUTHIALA,
SENIOR ADVOCATE WITH
MS.ANAIDA KUTHIALA &
MS.AMITA CHANDEL,
ADVOCATES)
2. RSA No.515 of 2017
SMT. NIRMAL THAKUR
W/O LATE SH. MANGAT
RAM R/O MANGAT NIWAS,
NEAR KRISHNA JIM,
JIWANU COLONY TEHSIL
AND DISTRICT SHIMLA
H.P.
.....APPELLANT
(BY MR. TEK CHAND SHARMA,
ADVOCATE)
AND
1. SMT. SURAJ NEGI W/O
LATE SH. PRAKASH
CHAND NEGI R/O PREETI
PUNEET KUTIR JIWANU
COLONY, PARIMAHAL
KASUMPTI, TEHSIL AND
DISTRICT SHIMLA H.P.
2. EXECUTIVE ENGINEER,
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SHIMLA ELECTRIC SUB-
DIVISION KHALINI
DISTRICT SHIMLA H.P.
.....RESPONDENTS
(NONE FOR R-1,
.
MR. ADARSH K. SHARMA,
ADDITIONAL ADVOCATE GENERAL,
FOR R-2)
3. RSA No.381 of 2017
SHRI THAKUR DASS
SHARMA S/O SHRI SITA
RAM CHAIRMAN, ALFA
PUBLIC SCHOOL,
BERTHIN, TEHSIL
JHANDUTTA, DISTRICT
BILASPUR (H.P.)
r .....APPELLANT
(BY MR. AJAY KUMAR, SENIOR
ADVOCATE WITH MR. GAUTAM
SOOD, ADVOCATE)
AND
SHRI MADAN LAL S/O
SHRI MAHANT RAM R/O
VILLAGE MAHHAN,
PARGANA SUNHANI,
TEHSIL JHANDUTTA
DISTRICT BILASPUR, H.P.
.....RESPONDENT
NONE FOR THE RESPONDENT.
4. RSA No.237 of 2019.
MOHAN SINGH S/O LATE
SH. NEK RAM
(DECEASED) THROUGH
LRS.
1-A. SH. VED PRAKASH S/O
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LATE SH.MOHAN SINGH
1-B. SMT. BIMLA DEVI
1-C. SMT. GANGA DEVI
1-D. SMT. KANTA DEVI W/O
LATE SH. MOHAN SINGH.
.
2. SH. MANI RAM
3. SMT. DAWARKOO DEVI,
4. SMT. SANTI DEVI,
5. SMT. MATHI DEVI,
6. SMT. GAURI DEVI,
7. SMT. KHEMI DEVI
ALL SONS AND
DAUGHTERS OF LATE SH.
NEK RAM
ALL RESIDENTS OF
VILLAGE PATHAI,
PARGANA LACHHANG,
P.O. RAURI. TEHSIL
KASAULI,
r DISTRICT
SOLAN, H.P.
.....APPELLANTS
(BY MR. SUDHIR THAKUR,
SENIOR ADVOCATE WITH
MR.KARUN NEGI, ADVOCATE)
AND
1. HUKUM SINGH S/O LATE.
SMT. MALGIRU DEVI W/O
LATE SH. ATMA RAM,
2. SMT. SATY DEVI,
3. SMT. PUSHPA DEVI
4. SMT. LEELA DEVI,
5. SMT. SAVATRI DEVI
ALL DAUGHTER OF LATE
SMI. MALGIRU DEVI, WIFE
OF LATE SH. ATMA RAM
6. SH. HEMAND KUMAR,
7. SH. SANJAY KUMAR,
BOTH SON OF LATE SH.
TURAL RAM SON OF,
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LATE SH. ATMA RAM
8. SMT. JAMNA DEVI D/O OF
LATE SH.TULA RAM, S/O
LATE SH. ATMA
RAM,
.
9. SMT. RITA DEVI WD/O OF
LATE SH.TULA RAM S/O
OF LATE SH. ATMA RAM,
10. SH.PAT RAM,
11. SH. NAND LAL
BOTH SONS OF LATE SH.
MAN SINGH BOTH
RESIDENTS OF VILLAGE
SHANGLI, PARGANA
LACHRANG. THE.
KASAULI, DISTRICT
SOLAN, H.P.
12. SH. BANSI RAM
(DECEASED) THROUGH
LRS:
12A SH. HEMANT KUMAR SON
OF LATE SH. BANSI RAM,
RESIDENT OF VILLAGE
SHANGLI, P.O. KANDA,
TEHSIL KASAULI,
DISTRICT SOLAN H.P.
12-B SMT. PRAVEEN KUMARI
DAUGHTER OF LATE SH.
BANSI RAM, RESIDENT OF
VILLAGE & P.O. KOT
BEJA, TEHSIL KASAULI,
DISTRICT SOLAN H.P.
13. SMT. GULAB DEVI
14. SMT. SURMA DEVI
BOTH DAUGHTERS OF
LATE SH. MAN SINGH
BOTH RESIDENT OF
VILLAGE SHANGLI.
PARGANA LACHHRANG.
TEHSIL KASAULI,
DISTRICT SOLAN H.P.
15. SH. OM CHAND
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16. SH. DURGA RAM
17. SH. BAHADUR SINGH
ALL SONS OF LATE SMT.
NAJKU D/O LATE SH. MAN
SINGH
.
18. SMT. HIRA
19. SMT. JAMNA
BOTH D/O LATE SMT.
NAJKU D/O LATE SH. MAN
SINGH
ALL RESIDENT OF
VILLAGE NAUN, P.LO.
JABLI, TEHSIL KASAULI,
DISTRICT SOLAN, H.P.
20. SH. ROSHAN LAL
21. SMT. HAR DEVI
22. SMT. JAMNA DEVI
23. SMT. DAYA VANTI
ALL
r SONS AND
DAUGHTERS OF LATE SH.
BALA RAM
24. SMT. CHAIN DEVI WIDOW
OF LATE SH. BALA RAM
SON OF SH. BALAK RAM
ALL RESIDENT OF
VILLAGE KAHNO,
PARGANA LACHHANG,
P.O. RAURI,
TEHSIL KASAULI,
DISTRICT SOLAN H.P.
25. SH. CHAIN SINGH
(DECEASED) THROUGH
LRS:
25-A SMT. TARA DEVI WIDOW
OF SH. CHAIN
SINGH
25-BSH. HARI KISHAN
25-C SH. KULDEEP
KUMARCHAIN
25-DSMT. USHA DEVI
25-E SMT. SANTOSH
25-F SMT. SHAKUNTLA
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ALL SONS AND
DAUGHTERS OF LATE SH.
CHAIN SINGH
ALL RESIDENT OF
VILLAGE KASAULI GAON,
.
P.O. GARKHAL, TEHSIL
KASAULI, DISTRICT
SOLAN H.P.
26. SH. CHET RAM
27. SH. THAKUR SINGH
28. SH. ISHWAR DUTT
ALL RESIDENT OF
VILLAGE SHANGULI,
KHURD, PARGANA
LACHHRANG.
TEHSIL KASAULI,
DISTRICT SOLAN H.P.
29. SMT. TARA DEVI WIFE OF
SH.
rTEK CHAND,
DAUGHTER LATE SMT.
KIRI, RESIDENT OF
VILLAGE BADYAR, P.O.
JUBBAR, TEHSIL
KASAULI, DISTRICT
SOLAN H.P.
30. SMT. NIRMALA DEVI WIFE
OF SH. OM PARKASH,
DAUGHTER OF LATE SMT.
KIRI
31. SMT. UMA DEVI WIFE OF
SH. DHEERAJ BHADUR
DAUGHTER OF LATE SMT.
KIRI
BOTH RESIDENT OF
VILLAGE TAMLOG. P.O.
JAGJIT NAGAR, TEHSIL
KASAULI, DISTRICT
SOLAN H.P.
32. SMT. MEENA DEVI WIFE OF
SH. NARINDER SINGH
DAUGHTER LATE SMT.
KIRI, RESIDENT OF
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VILLAGE MAGOTI MORE,
P.O. MANDHO DHAR,
TEHSIL KASAULI,
DISTRICT SOLAN H.P.
33. SMT. KAVITA DEVI WIFE
.
OF SH. BALWANT SINGH,
DAUGHTER OF LATE SMT.
KIRI, RESIDENT OF
VILLAGE PALECH, P.O.
AND TEHSIL KANDAGHAT,
DISTRICT SOLAN H.P.
34. SMT. PRATIMA WIFE OF
SH. RAJESH DAUGHTER
OF LATE SMT. KIRI,
RESIDENT OF VILLAGE
BANGLA, P.O. AND TEHSIL
KASAULI, DISTRICT
SOLAN H.P.
35.
SMT. LALITA DEVI WIFE
OF SH. TARA DUTT
DAUGHTER OF LATE
SMT.KIRI, RESIDENT OF
VILLAGE BAANDH, P.O.
BHAGURI. TEHSIL
KASAULI, DISTRICT
SOLAN H.P.
36. SH. LEKH RAJ SON OF
LATE SMT. KIRI WIFE OF
SH. DEVI SING, RESIDENT
OF VILLAGE BARAHA,
P.O. GARKHAL, TEHSIL
KASAULI, DISTRICT
SOLAN H.P.
37. SMT. SHILA
38. SMT. MATHURA
ALL DAUGHTERS OF SH.
DHANI RAM
39. SMT. KAMLA
ALL RESIDENT OF
VILLAGE SHANGULI
KHURD, PARGANA
LACHHHRANG, TEHSIL
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KASAULI, DISTRICT
SOLAN, H.P.
.....RESPONDENTS
(MR. P.S. GOVERDHAN,
.
ADVOCATE, FOR R-1, R-6 TO
R-11, R-12(A) AND 12(B)
[MR. K.D. SOOD, SENIOR
ADVOCATE WITH MR. HET
RAM THAKUR, ADVOCATE,
MR. BHUPENDER GUPTA,
SENIOR ADVOCATE WITH MR.
JANESH GUPTA, ADVOCATE
AND;
MR. SHRAWAN DOGRA
SENIOR ADVOCATE WITH MR.
HARSH KALTA, ADVOCATE.
MR. MANIK SETHI, ADVOCATE
AS INTERVENERS]
RESERVED ON: 31.3.2022
PRONOUNCED ON: 17.05.2022
_____________________________________________________
These appeals coming on for pronouncement of the
judgment this day, Hon'ble Mr. Justice Mohammad Rafiq,
passed the following:
ORDER
These matters have been referred to the Larger Bench
by the order of the Single Bench dated 19 th December, 2017 passed
in two Regular Second Appeals, namely, RSA Nos.57 of 2017 and
381 of 2017.
2. RSA No.57 of 2017 is plaintiff's appeal against the
judgment and decree dated 16.09.2016 passed by the Additional
.
District Judge (II) Kangra at Dharamshala who thereby set aside the
judgment and decree passed by the Civil Judge(Senior Division),
Court No.1, Dehra, District Kangra in the civil suit as well as counter
claim decided on 28.09.2012, dismissing the suit filed by the
plaintiff/appellant and decreeing the counter claim of the
defendants/respondents.
Further prayer has been made to set
aside the judgment and decree passed by Additional District Judge
and decree the suit of the appellant/plaintiff and dismiss the counter
claim filed by the respondents/defendants. The plaintiff in this case
filed a suit for permanent prohibitory injunction, in which the
defendants/respondents filed a counter claim. Both, the suit and the
counter claim, were tried together and were allowed in part by a
common judgment. The plaintiff was held entitled to the relief of
permanent prohibitory injunction against the defendants over a part
of the land classified as 'gair-mumkin-abadi' measuring 0-06-00
hectares, out of the total land measuring 0-10-91 hectares. The
counter claim of the defendants was also partly allowed holding
them entitled to the relief of permanent prohibitory injunction against
the plaintiff, who was restrained from interfering over a portion of the
land classified as 'banjar kadeem' measuring 0-04-91 hectares.
3. RSA No.381 of 2017 is defendant's appeal against the
judgment and decree dated 31.05.2017 passed by the Additional
.
District Judge, Ghumarwin, District Bilaspur affirming the judgment
and decree dated 30.06.2016 passed by the Civil Judge (Junior
Division) Court No.2, Ghumarwin, District Bilaspur, who thereby
decreed the civil suit filed by the plaintiff/respondent for recovery of
an amount of Rs.2,25,975/- with interest at the rate of 15% per
annum with quarterly rests from the date of filing of the suit till
realization of the whole amount from the defendant and dismissed
the counter claim for recovery of Rs.2,85,159/- filed by the
appellant/defendant against the plaintiff/respondent.
4. The question that arose before the learned Single
Judge was whether a common appeal questioning correctness of
the judgment and decree passed in civil suit as well as in counter
claim was legally maintainable before the Court below. The learned
Single Judge noticing the conflict of opinion between the Single
Bench judgment of this Court in RSA No.561 of 2005, titled Pohlo
Ram vs. Jindu Ram and others decided on 28.10.2005 on one
hand and three judgments of different Single Benches of this Court
passed in (i) Smt. Satya Devi vs. Partap Singh and others, AIR
2006 HP 75 and (ii) H.P. State Forest Corporation through its
Divisional Manager vs. Kahan Singh, 2017(1) Him. L.R. 36 and in
(iii) Mohan Singh vs. Inder Singh & others 2017(1) Him. L.R. 368,
.
on the other hand, while disagreeing with the view expressed in
Pohlo Ram (supra), has referred the matter to the Larger Bench for
an authoritative pronouncement.
5. We have heard Mr. B.M. Chauhan, Mr.Ajay Kumar,
Mr.Sudhir Thakur, learned Senior counsels & Mr.Tek Chand Sharma,
learned counsel appearing for the appellants and Mr.Sanjeev
Kuthiala, learned Senior Counsel, appearing for the respondents in
RSA No.57 of 2017 and Mr.K.D. Sood, Mr.Bhupender Gupta and
Mr.Shrawan Dogra, learned Senior Counsel & Mr.Malkiyat Singh,
learned counsel, appearing as interveners.
6. Mr. B.M. Chauhan, learned Senior Counsel appearing
for the appellant in RSA No. 57 of 2017, argued that Section 2(2) of
the Code defines decree as formal expression of an adjudication
which conclusively determines the right of the parties with regard to
all or any of the matters in controversy. Section 2 (9) of the Code
defines judgment to be statement given by the judge on the grounds
of a decree or order. Order 8 Rule 6-A of the Code provides for filing
of counter claim in a suit against the claim of the plaintiff by the
defendant. Order 8 Rule 6-A (2) of the Code provides that such
counter claim shall have the same effect as the cross suit so as to
enable the court to pronounce a final judgment in the same suit both
.
in the original claim and in the counter claim. Sub rule 6-A (4) of
Order 8 of the Code categorically provides that counter claim shall
be treated as a plaint and governed by the rules applicable to the
plaint. Relying on the judgment of Supreme Court in Rajni Rani
and another versus Khairati Lal and others, (2015) 2 SCC 682,
the learned Senior Counsel argued that in that case it was held that
dismissal of counter claim on merits after adjudication would attach
finality to it in respect of the rights of defendant and get the status of
a decree and therefore appeal is proper remedy against final order
of dismissal of counter claim on merits. A counter claim preferred by
the defendant in a suit is in the nature of the cross suit and by a
statutory command, even if the suit is dismissed, counter claim shall
remain alive for adjudication. It is argued that the aforementioned
provisions suggest that counter claim, if any, filed on behalf of the
defendant would be treated as plaint and the same would be
governed by the rules applicable to the plaint. It would have the
same effect as a cross suit so as to enable the court to pronounce a
final judgment in the civil suit, both on the original claim and the
counter claim.
7. The learned Senior Counsel argued that in the present
case, the learned trial court partly decreed the suit of the plaintiff for
.
permanent and prohibitory injunction against the defendant over one
portion of the land and partly allowed the counter claim filed by the
defendants holding them entitled to the relief of permanent and
prohibitory injunction restraining the plaintiff from interfering with
their possession in another portion of land. There were thus two
adjudications made by learned trial court vide which both original
claim as well as counter claim had been conclusively adjudicated on
merits. The defendants were, therefore, aggrieved by the judgment
and decree passed both in the original claim as well as in the
counter claim. The learned first appellate Court has erred in law by
entertaining and deciding a composite appeal against the common
judgment/decree partly allowing the civil suit as well as partly
accepting the counter claim. The learned First Appellate Court erred
in law in not appreciating that in absence of two separate appeals
against the judgment and decree passed by the trial Court,
adjudication in one matter would act as a res-judicata qua the other
and a composite appeal was not maintainable.
8. Mr.B.M. Chauhan, the learned Senior Counsel argued
that a party aggrieved by finding on any issue on counter claim has
to agitate the same in appeal, lest it becomes final qua that party
upon his failure to file appeal against such finding. A composite
.
appeal covering both the subject matters of original claim as well as
the counter claim cannot be maintained. The learned Senior Counsel
for the appellant in support of his arguments has relied upon the
judgments of the Supreme Court in Premium Tyres Ltd. vs. Kerala
State Road Transport Corporation, (1993) Supp (2) SCC 146 and
in Sri Gangai Vinayagar Temple and another vs. Meenakshi
Ammal and others, (2015) 3 SCC, 624. Learned Senior Counsel in
support of his arguments also relied upon the judgments of this
Court in Parso Ram vs. Dumnu Ram, 2017(3) SLC 1270, Kahan
Singh (supra), Mohan Singh (supra) and Piar Chand vs. Ranjeet,
2016 (Supp) SLC 612. It is submitted that in all these judgments,
view has been taken and rightly so that the counter claim has effect
of the suit and the same has to be treated as the plaint and the effect
of the counter claim is that even if the suit of the plaintiff is stayed,
discontinued, dismissed or withdrawn, counter claim can yet be
decided on merits.
9. Mr. Ajay Kumar, learned Senior Counsel appearing for
the appellant in RSA No.381 of 2017 argued that the
plaintiff/respondent in this case filed a civil suit in the trial court
against the defendant/appellant for recovery of Rs.2,34,500. In the
said suit, the appellant/defendant also field a counter claim for
.
recovery of Rs.2,85,159/-. The learned trial court by a common
judgment passed in the suit and counter claim decreed the suit of
the plaintiff/respondent and at the same time, dismissed the counter
claim of the appellant/defendant. A single/composite decree sheet,
both for the suit as well as the counter claim, was drawn by the
learned trial court. Aggrieved thereby, the appellant/defendant filed
a single appeal in the Court of Additional District Judge, Ghumarwin,
who vide his judgment dated 31.05.2017 dismissed the appeal on
the ground that in view of the decision of this Court in Piar Chand
(supra) single appeal is not maintainable. The learned Senior
Counsel submitted that in view of the amendments carried out in the
Code of Civil Procedure, the memorandum of appeal is now not
required to be accompanied by a decree sheet as per the provisions
of Order 41 Rule 1 and Order 20 Rule 6-A of Code. Rule 6-A of
Order 20 of the Code came into force w.e.f. 01.07.2002. It has,
therefore, been made now possible to file appeal only on the basis
of judgment and the memo of appeal need not be accompanied by
copy of decree sheet. In the present case, however, there was a
composite decree sheet which was filed alongwith the appeal.
Learned Senior Counsel relied on the judgment of Supreme Court in
Narhari and others vs. Shanker and others, AIR 1953 SC 419 to
.
argue that where there is one trial, one finding and one decision, a
single appeal would be competent. In order to buttress his
arguments, the learned Senior Counsel also relied on the judgment
of this Court in Pohlo Ram (supra).
10. It is further argued that the right to appeal is a
substantial right of a litigant and substantial rights should not be
allowed to be defeated on technical grounds. The learned Senior
Counsel has on this aspect of law placed reliance on judgment of
the Supreme Court in B.S. Sheshagiri Setty and others vs. State
of Karnataka and others, (2016) 2 SCC 123, and Rani Kusum vs.
Kanchan Devi and others, (2005) 6 SCC 705. It is submitted that
no one has vested right in the procedure and processual law is not
to be a tyrant but a servant, not an obstruction but an aid to justice.
Relying on the judgment of Supreme Court in Shreenath and
another vs. Rajesh and others, 1998(4) SCC 543, learned Senior
Counsel argued that in that it was held that in interpreting any
procedural law, where more than one interpretation is possible, the
one which curtails the procedure without eluding justice, is to be
adopted. The procedural law is always subservient to and in aid of
justice. Any interpretation which eludes or frustrates the recipient of
justice is not to be followed.
.
11. Mr. Sanjeev Kuthiala, learned Senior Counsel appearing
for the respondents/defendants in RSA No.57 of 2017 submitted that
there is an express provision in Order 20 Rule 19(2) of the Code
that in the case an appeal from a decree passed in a suit, where a
counter claim has been made, can be filed as if no counter claim has
been claimed, which necessarily means that the appellants would be
entitled to question the decree of the counter claim in the same
appeal and there is no necessity of filing separate appeal in case the
counter claim preferred in the suit has been decreed by the trial
court. Such provision was incorporated by the amendment in CPC
whereby the term "counter-claim" was added to the provision of
Order 20 Rule 19(2) of CPC. It was argued that prior to the
aforementioned amendment, a similar question had arisen before
the Supreme Court in Narhari (supra), wherein it was held that one
appeal can be filed with respect to the suit and the counter claim.
The learned Senior Counsel argued that this Court in Kedar Singh
2017 (1) Shimla Law Cases 469, Mohan Singh (supra), 2017 (1)
Latest Himachal Law Reports 387, Baldev Singh vs. Chet Ram
and Kahan Singh (supra); has taken the view that where in a matter
both suit and counter claim are filed and where there is a composite
decree, then a composite appeal is not maintainable but separate
.
appeals are required to be preferred and not a composite appeal. In
none of these judgments, binding precedent of the Supreme Court in
Narhari (supra) was considered and also the effect of the amended
provision of Order 20 Rule 19(2) of the Code was not analyzed.
Language of this provision expressly provides that in an appeal from
a decree passed in the suit where a counter claim has been made,
the appeal would be filed as if no counter claim had been made.
Relying on the judgment of Rajasthan High Court in Iqbal Banu vs
Ramesh, 2018 Supreme (Raj.) 870, the learned Senior Counsel
argued that therein correctness of the judgments of Kahan Singh
(supra) and Parso (supra) has been doubted on the premise that
these two judgments failed to consider the effect of Order 20 Rule
19(2) of the Code. It was held therein that a single appeal against a
common decree passed by the trial court dismissing the suit and
accepting the counter claim was maintainable. The learned Senior
Counsel further submitted that right of appeal conferred by the
statute has to be liberally construed. Where appeals lie to the same
authority, it would be too technical an approach to adopt to partly
reject a composite appeal on the ground that separate appeals,
instead of a composite appeal, ought to have been filed. The right of
appeal is a remedy provided under the statute and should not
.
ordinarily be denied unless the law expressly prohibits it. The
learned Senior Counsel, therefore, argued that a single appeal is
maintainable questioning correctness of the judgment and decree
passed in the civil suit as also the counter claim.
12. On the question of res-judicata, Mr. Sanjeev Kuthaila,
the learned Senior Counsel argued that this principle would be
applicable only where two or more suits are disposed of by a
common judgment but separate decrees are prepared or where two
suits are filed and connected and decided by a common judgment
and decree. In such a situation, where multiple suits are disposed of
by one judgment but by different decrees or otherwise, two or more
appeals would be requisite. The learned Senior Counsel in support
of his arguments relied on the judgments of the Supreme Court in
Shri Ramagy Prasad Gupta and others vs. Sri Murli Prasad and
others, (1974) 2 SCC 266, Premium Tyres Ltd. (supra), Rajni Rani
(supra); Sri Gangai Vinayagar Temple (supra) and State of
Andhra Pradesh and others vs. B. Ranga Reddy (Dead ) by
Legal Representatives and others, 2020(15) SCC 681
13. Mr. K.D. Sood, learned Senior Counsel, appearing as
intervener, submitted that though an appeal lies against a decree
under Order 41 Rule 1 of CPC but the requirement of filing appeal,
.
following amendment brought in the Code with effect from
01.07.2002, is that the appeal has to be accompanied with copy of
the judgment only. Referring to Order 20 Rule 6 & 6A CPC, the
learned Senior Counsel argued that a decree sheet is required to be
drawn up/prepared in every case which is decided, but preparation
of drawing of a decree is a ministerial act and the appeal can be filed
even without attaching a copy of decree, on the basis of judgment
alone. With the pronouncement of judgment, copy of the judgment is
required to be delivered to the parties. As per order 20 Rule 6A and
6B of C.PC, the decree sheet is to be prepared as expeditiously as
possible, in any case within 15 days from the date on which the
judgment is pronounced. Order 20 Rule 19 of CPC contemplates
drawing up a decree in case of set off or counter claim and sub rule
(2) thereof only enables the filing of appeals in case of set off or
counter claim. Order 8 Rule 6A to 6G of CPC provides for the mode
of trial for counter- claim which can be decreed if the written
statement etc. is not filed either before the decision of the suit and
also in case the suit is stayed, in that event the counter claim can
proceed. It is trite that counter claim is to be tried as a separate suit,
like a cross suit and the court is entitled to pronounce the judgment
in the same suit, both in respect of the claim in the suit and the
.
counter claim. The learned Senior Counsel, therefore, argued that
the decree sheet is required to be drawn up in every case bearing
number of the suit or number of the cross suit/counter claim/set off.
When Section 96 or Section 100 CPC provides for appeal against
the decree, unless the two or more suits are consolidated, there has
to be separate appeals against the judgment and decree in each
suit, cross suit, counter claim etc. However when two or more suits
are consolidated, evidence is recorded in one case which is
considered in all the matters, it is treated as one suit. Therefore,
unlike consolidated suits, the cross suits or counter claims are to be
treated as separate and distinct suits. They are not treated as
consolidated with the main suit. The argument therefore, is that the
appeals in such a situation have to be filed against all the decrees
which may be accompanied with the copy of the judgment. The
learned Senior Counsel in support of his arguments, relied upon the
following judgments:-
(i) Narhari (supra); (ii) AIR 1996 SC 1322 Sheoden
Singh versus Daryao Kanwar; (iii) Ramagya Prasad Gupta and
others vs. Murli Prasad and others, AIR 1974 SC 1320, (iv)
Premier Tyres (supra); (v) AIR 1997 SC 1736 Ram Prakash versus
Charan Kaur; (vi) Mt. Lachhhmi vs. Mt. Bhuli, AIR 1927 Lahore
.
289; (vii) Appa and others vs. Kachai Bayyan Kutti and others,
AIR 1932 Madras 689; (viii) Satya Devi (supra); (ix) Rajni Rani
(supra); were approved by the Supreme Court in Narhari (supra).
14. Mr. K.D. Sood, learned Senior Counsel argued that
judgments of the this Court Kahan Singh (supra), Mohan Singh
(supra) and Satya Devi (supra) have been correctly decided,
wherein it has been held that when two suits or a suit and counter
claim, are decided by common judgment, separate appeals have to
be filed against the decree sheet in both of them. Judgment of the
Rajasthan High Court in Iqbal Banu (supra) does not lay down
correct law because Order 20 Rule 19(2) of the Code only provides
and enables that an appeal can be filed against the adjudication of a
counter claim, set off and nothing more than that is contemplated or
provided therein. However, exception will be only in the case where
the suits are consolidated and the same is treated as one suit for all
intents and purposes, by recording evidence in one case which is
treated as evidence in all cases and all the cases being tried and
disposed of by a common judgment and drawing up of a common
decree treating it as one decision.
15. Mr. Shrawan Dogra, learned Senior Counsel appearing
.
as intervener, submitted that Order 8 Rule 6-A of the Code provides
for counter claim by defendant and sub-rule (4) thereof provides that
counter claim shall be treated as a plaint and would be governed by
the rules applicable to plaints. Such counter claim as per sub-rule (2)
thereof is to be tried as cross suit and the Court has to pronounce
final judgment both on original claim and on the counter-claim.
Section 2(2) of the Code defines decree as formal expression of an
adjudication which conclusively determines the rights of the parties.
Section 2(9) of the the Code defines judgment to be statement given
by the Judge on the grounds of a decree. Order 14 of the Code
refers to the framing of the issues and requirement of
pronouncement of judgment on all issues. Order 20 Rule 5 of the
Code requires the Court to state decision on each issue. Order 20
Rule 19(2) of the Code provides for appeal from counter claim which
would be subject to same provision as to appeal against original
decree. It is argued that any pronouncement on the issues framed in
pursuance to the pleadings in counter-claim will adjudicate the
controversy between the parties. The parties have to deal with such
findings in the same manner as it would have behaved in case
pronouncement is on the issues between the parties in the original
claim. A party aggrieved by any finding on any issue in counter claim
has to agitate the same in appeal, lest the same becomes final qua
.
that party in case no appeal is filed against such finding. Finding on
any issue becoming final, whether in original claim or the counter
claim, will bind the parties. There may be a situation that the court
may pronounce common judgment for original claim as well as
counter-claim, covering all the issues raised in both, and eventually,
a common decree may be passed covering all the aspects of the
common judgment. In such a situation also, the parties have to
challenge the findings in appeal separately by identifying and
locating the issues framed. In case issue(s) relate to original claim,
appeal has to be filed with regard to subject matter covering the
original claim. Similarly, in case the issue(s) relate to counter-claim,
then the appeal has to be filed with respect to the subject matter
covering the counter-claim. In other words, a common appeal
covering both the subject matters of the original claim as well as
counter claim, cannot be maintained. There has to be separate
appeal with regard to both subject matters. The learned Senior
Counsel argued that in case appeal is filed qua only one subject
matter, i.e. original claim or the counter-claim, then the party is,
consciously, allowing the findings in respect of the other subject
matter, to become final. Such conduct of the party will determine the
future consequence of such finality like res-judicata etc. between the
.
parties. Therefore, in case only one appeal is filed touching subject
matter and issues. involved either in original claim or in counter-
claim, then such appeal has to be confined to such subject matter
alone. Resultantly, the consequence of finality attained on other
findings in the other claim will entail its necessary effect on the
determination of rights of the parties keeping in view the fact of such
finality.
16. Mr. Manik Sethi, learned counsel also appearing as
intervener, submitted that the counter claim is not an independent
suit for all purposes but is deemed to be an independent suit for the
purposes as mentioned in the Code under Order 8 Rule 6A (2), (3) &
(4) and for the purpose of limitation as per Section 3(2)(b) of the
Limitation Act, 1963. If the counter claim is to be treated as a
separate suit, independent from the main suit, then it would amount
to rewriting Order 8 Rule 6A (2), which mandates "a final judgment"
and in "same suit". Further, treating counter claim as a separate suit
would mean that there will be a "common judgment" as against the
"final judgment" and that it will be common for "both the suits" as
against the mandate of having it in the "same suit" per Order 8 Rule
6A (2). As the counter claim can also be set up through amendment
(Order 8 Rule 8 the Code) and by way of subsequent pleadings
.
(Order 8 Rule 9 the Code), treating the counter claim as an
independent suit would mean that a suit may be filed by way of
amendment or by way of subsequent proceedings, which is
impermissible. It is submitted that the Code only allows the
pleadings to be amended or substituted and not an independent suit.
It is argued that if counter claim is to be treated as a separate suit,
independent from the main suit, then the same would amount to
rendering Order 8 Rule 6-C otiose, which deals with "Exclusion of
Counter claim". This provision gives power to the Court to exclude
the counter claim, for it to be treated as an independent suit and
tried independently. If counter claim is meant to be an independent
suit in itself, then there cannot be any "exclusion" from the main suit
as an independent suit cannot be said to be "included" in the main
suit. It can at best be "connected" but not included with the main suit.
The learned counsel in support of his arguments relied upon the
judgment of Supreme Court in Indian Bank vs. ABS Marine
Products (P) Ltd., (2006) 5 SCC 72, to argue that the Supreme
Court therein held that a counter claim cannot be given the status of
an independent proceedings.
17. We have given our thoughtful consideration to the rival
.
submissions and perused the material on record.
18. Starting with leading judgment of the Supreme Court on
the subject in Premier Tyres Limited (supra), a suit was filed by the
appellant (Premier Tyres Limited) therein for recovery of certain
amount on account of supply of goods made by it to the respondent-
Kerala State Road Transport Corporation. The respondent also filed
a suit for recovery of amount paid in excess of DGS & D contract
rates. Both the suits were connected and tried together. As the
nature of dispute in both the suits was same, common issues were
framed in both the suits. The trial court found that the respondent-
Corporation was liable to pay only at DGS & D contract rates and
was entitled to refund to the extent of excess payment made by it
and that the appellant was entitled to recover to the extent its claim
was found to be substantiated even on the basis of DGS & D
contract rates. Both the suits were thus decreed partly. The appellant
did not file any appeal against dismissal of the suit for the part of its
claim but filed appeal against the decree granted in favour of the
respondent-Corporation in the suit filed by it. At the time of hearing,
the High Court dismissed the appeal of the appellant
as barred by res judicata as the finding recorded in the connected
suit that the appellant was entitled to charge and collect only on the
DGS & D rates and not on the invoice price, had become final. The
.
argument of the appellant before the Supreme Court that Section 11
of CPC pertaining to res judicata would not apply to such a case
since both the suits were connected and decided by a common
judgment therefore, the issue in neither suit can be said to have
been decided in a former suit was repelled. The Supreme Court
while dismissing the appeal of the appellant held that the effect of
non-filing of appeal against a judgment and decree is that it
becomes final.
19. The Supreme court in Ramagya Prasad Gupta case,
supra was called upon to reconsider the judgment in Sheodan
Singh (supra) but it did not consider it necessary to examine the
matter as the subject matter of two suits being different, one of the
necessary ingredients for applicability of Section 11 of CPC, was
found missing. In that case, three suits were filed before the trial
court by two different parties. While P filed suit for accounting, M
filed suit for declaration that he alone was entitled to money payable
by the Government and also filed a suit to declare that he continues
to be the partner of the firm which purchased the assets in a public
auction although at an earlier stage he had withdrawn from the firm.
The trial Court decreed the suit filed by P but dismissed the other
two suits, by a common judgment. N filed an appeal against the said
.
judgment, but later on he got it dismissed for non-prosecution. M,
however, preferred two appeals, one against the decree passed in
the suit field by P and the other against the dismissal of his own suit.
The High Court decided the two appeals by a common judgment
and held that M alone was entitled to the money deposited in the
Court. The share of A in the partnership was 10 annas. He entered
in the partnership as the Head and Karta of joint family which
consisted of R and B, besides others. Against the decision of the
High Court, R filed two separate appeals and B also filed two
appeals. However, before these four appeals came up for hearing,
one of the respondents died and his legal representatives were not
brought on record. Consequently, appeals filed by both R and B
were dismissed as abated. The questions that were raised before
the Supreme Court was, firstly; whether the remaining appeals were
barred by res judicata and, secondly; whether M alone was entitled
to money because the partnership was void. The Supreme Court
held that in appeals arising out of a subsequent suit and an earlier
suit where there were common issues, common subject-matter and
common trial and the appeals arising out of the subsequent suit,
were dismissed, a question may also arise where the subject-matter
is the same and the issues are common in the two suits but where
.
some of the parties are different in one suit, whether the bar of res
judicata would operate against the parties who are common, but the
subject-matters of the suit are different. The Supreme Court held
that even if some of the issues are common but some issues were
different, the bar of res judicata would not apply. Whatever may
have been the common issues between the two suits, one issue
which is not common and makes the subject-matter of both the suits
different is that M is solely entitled to compensation from the State.
This issue is not necessarily confined to the existence or validity of
the partnership but as to whether the other parties to the suit have
contributed to the capital of the firm or paid M any amounts which
they are entitled to recover from out of the compensation amount. It
was therefore held that no question of res judicata would arise.
20. In Laxmidas Dayabhai Kabrawala vs. Nanabhai
Chunilala Kabrawala and others, 1964 AIR (SC) 11, the suit was
filed by one partner against the heirs of deceased partner for specific
performance of agreement. The defendants filed counter claim for
accounts of the dissolved firm. The plaintiff filed reply to the counter
claim contending that the same was not legally maintainable and
prayed for dismissal for the counter claim with costs. The argument
of the appellant before the Supreme Court was that the trial court
.
dismissed the suit filed by the plaintiff but while dealing with the
issue relating to the counter claim that the real nature of the suit
being that of specific enforcement of the agreement a counter claim
was not admissible. The prayer of the defendants to treat the
counter claim as a plaint in a cross suit by them was rejected. The
trial court therefore while dismissing the counter claim held that the
defendants could bring a separate suit for accounts and for a share
of the profits of the dissolved partnership, if so advised. While the
plaintiff remained contented with the judgment which he obtained on
his claim but the defendants preferred an appeal to the District judge
questioning correctness of the order dismissing the counter-claim as
not maintainable. That appeal was however dismissed. Thereafter
the defendants brought the matter before the High Court by way of a
second appeal. The High Court allowed the appeal and while
setting side the order of dismissal of counter claim, remanded the
matter to the trial judge with the direction that the counter claim be
treated as a plaint in the cross suit and the reply of the plaintiff to
the counter claim be treated as written statement to the cross suit
and thereafteer the cross suit be tried and disposed of, in
accordance with law. The majority opinion of the Supreme court in
Laxmidas Dayabhai Kabrawala (supra) was expressed in para-11
.
of the report as under:-
"11. The question has therefore to be considered on
principle as to whether there is anything in law-
statutory or otherwise-which precludes a court from
treating a counter-claim as a plaint in a cross suit.
We are unable to see any. No doubt, the Civil
Procedure Code prescribes the contents of a plaint
and it might very well be that a counterclaim which is
rto be treated as a cross-suit might not conform to all
these requirements but this by itself is not sufficient
to deny to the Court the power and the jurisdiction to
read and construe the pleadings in a reasonable
manner. If, for instance, what is really a plaint in a
cross-suit is made part of a Written Statement either
by being made an annexure to it or as part and
parcel thereof, though described as a counter-claim,
there could be no legal objection to the Court
treating the same as a plaint and granting such relief
to the defendant as would have been open if the
pleading had taken the form of a plaint. Mr. Desai
had to concede that in such a case the Court was
not prevented from separating the Written Statement
proper from what was described as a counter-claim
and treating the latter as a cross-suit. If so much is
conceded it would then become merely a matter of
degree as to whether the counter-claim contains all
the necessary requisite sufficient to be treated as a
plaint making a claim for the relief sought and if it did
it would seem proper to hold that it would be open to
.
a Court to covert or treat the counter-claim as a
plaint in a cross suit. To. hold otherwise would be to
erect what in substance is a mere defect in the form
of pleading into an instrument for denying what
justice manifestly demands. We need only add that it
was not suggested that there was anything in Order
8 Rule 6 or in any other provision of the Code which
laid an embargo on a Court adopting such a course".
21. In Sheodan Singh (supra), one of the common issues
related to respective rights of the parties to the suit property. The
finding of the trial court on this issue was that the respondent-Smt.
Daryao Kunwar was entitled to the properties claimed by the
appellant's father in his suit No. 37 of 1950. The trial court therefore
dismissed that suit and in view of that finding, suit No. 91 of 1950
filed by the respondent was decreed in her favour. Further suit No.
42 of 1950 filed by the appellant's father was on the same finding
decreed to the extent of half only and suit No. 77 of 1950 filed by the
respondent was also decreed to the extent of half and a permanent
injunction was granted in favour of the respondent-Smt. Daryao
Kunwar as prayed for by her in that suit. The appellant's father
aggrieved by these judgments filed two first appeals in the High
Court being Appeal No. 365 of 1951 against the dismissal of suit No.
37 of 1950 and appeal No. 366 of 1951 against the dismissal of suit
No. 42 of 1950. The appellant's father also filed two appeals in the
.
court of the District Judge against the judgments and decrees in the
suit filed by the respondent-Smt. Daryao Kunwar. Appeal No. 452 of
1951 was filed against the decree in suit No. 77 of 1950 while
appeal No. 453 of 1951 was against the decree in suit No. 91 of
1950. By an order of the High Court, the two appeals pending in the
court of the District Judge were transferred to the High Court.
Thereafter appeal No. 453 of 1951 arising out of suit No. 91 of 1950
was dismissed by the High Court on October 9, 1953 being time
barred and appeal No. 452 of 1951 arising out of suit No. 77 of 1950
was dismissed by the High Court on October 7, 1955, on account
of failure of the appellant's father to apply for translation and printing
of the record as required by the rules of the High Court. After
dismissal of these two appeals, an application was made on behalf
of the respondent-Smt. Daryao Kunwar, praying that first appeals
Nos. 365 and 366 of 1951 be dismissed, as the main question
involved therein, namely, title of Smt. Daryao Kunwar to the suit
property, had become final on account of the dismissal of the
appeals arising out of suits Nos. 77 and 91 of 1950. When this
question came up for hearing before a learned Single Judge, he
made a reference to the Full Bench for an authoritative
pronouncement in view of the conflict between two Division Benches
.
of the High Court on the question "whether the appeal is barred by
Section 11 of the Code of Civil Procedure or by the general
principles of res judicata as the appeals against the decisions in
suits Nos. 77 and 91 of 1950 were rejected and dismissed by this
Court and those decisions have become final and binding between
the parties". In those facts, the Full Bench came to the conclusion
that two matters were directly and substantially in issue in all the four
suits, namely (i) whether Harnam Singh and his adopted son Ram
Kishan died in a state of jointness with the appellant and his father,
and (ii) whether the property in suit was joint family property of Ram
Kishan and the appellant's father. The decision of the trial court on
both these issues was against the appellant and his father and in
favour of the respondent-Smt. Daryao Kunwar. The Full Bench held
that there were four appeals originally before the High Court, two of
them had been dismissed. The very same issues which arose in first
appeals Nos. 365 and 366 had also arisen in those two appeals
which had been dismissed. The Full Bench concluded that the terms
of Section 11 of the Code of Civil Procedure were fully applicable
and therefore the two first appeals Nos. 365 and 366 were barred by
res judicata to the extent of the decision on the five issues which
were common in four connected appeals. The judgment of the
.
Supreme Court in Nahari (supra) was cited to question the
correctness of the view taken by the Full Bench. Distinguishing that
judgment, the Supreme court in paras-13 and 14 of the report held
as under:
"13. Then it is urged that all the four suits were
consolidated and decided on the same day by the
same judgment and there can therefore be no
question that suits Nos. 77 and 91 were former suits
and thus the decision as to title in those suits
became res judicata. It is not in dispute that the High
Court's decision in the appeals arising 'from suits
Nos. 77 and 91 was earlier. Reliance in this
connection is placed on the decision of this Court in
Nahari v. Shankar. That case however has no
application to the facts of the present case, because
there the suit was only one which was followed by
two appeals. The appeals were heard together and
disposed of by the same judgment though separate
decrees were prepared. An appeal was taken
against one of the decrees. In those circumstances
this Court held that as there was only one suit, it was
not necessary to file two separate appeals and the
fact that one of the appeals was time-barred did not
affect the maintainability of the other appeal and the
question of res judicata did not at all arise. In the
present case there were different suits from which
different appeals had to be filed. The High Court's
decision in the two appeals arising from suits Nos'
.
77 and 91 was undoubtedly earlier and therefore the
condition that there should have been a decision in a
former suit to give rise to res judicata in a
subsequent suit was satisfied in the present case.
The contention that there was no former suit in the
present case must therefore fail.
14. This brings us to the main point that has been
urged in these appeals, namely, that the High Court
had not heard and finally decided the appeals arising
out of suits Nos. 77 and 91. One of the appeals was
dismissed on the ground that it was filed beyond the
period of limitation while the other appeal was
dismissed on the ground that the appellant therein
had not taken steps to print the records. It is
therefore urged that the two appeals arising out of
suits Nos. 77 and 91 had not been heard and finally
decided by the High Court, and so the condition that
the former suit must have been heard and finally
decided was not satisfied in the present case.
Reliance in this connection is placed on the well-
settled principle that in order that a matter may be
said to have been heard and finally decided, the
decision in the former suit must have been on the
merits. Where, for example, the former suit was
dismissed by the trial court for want of jurisdiction, or
for default of plaintiff 's appearance, or on the ground
of non-joinder of parties or misjoinder of parties or
multifariousness, or on the ground that the suit was
badly framed, or on the ground of a technical
mistake, or for failure on the part of the plaintiff to
.
produce probate or letters of administration or
succession certificate when the same is required by
law to entitle the plaintiff to a decree, or for failure to
furnish security for costs, or on the ground of
improper valuation or for failure to pay additional
court fee on a plaint which was undervalued or for
want of cause of action or on the ground that it is
premature and the dismissal is confirmed in appeal
(if any), the decision not being on the merits would
not be res judicata in a subsequent suit. But none of
these considerations apply in the present case, for
the Additional Civil Judge decided all the four suits
on the merits and decided the issue as to title on
merits against the appellant and his father. It is true
that the High Court dismissed the appeals arising
out of suits Nos. 77 and 91 either on the ground that
it was barred by limitation or on the ground that
steps had not been taken for printing the records.
Even so the fact remains that the result of the
dismissal of the two appeals arising from suits Nos.
77 and 91 by the High Court on these grounds was
that the decrees of the Additional Civil Judge who
decided the issue as to title on merits stood
confirmed by the order of the High Court. In such a
case, even though the order of the High Court may
itself not be on the merit the result of the High
Court's decision is to confirm the decision on the
issue of title which had been given on the merits by
the Additional Civil Judge and thus in effect the High
Court confirmed the decree of the trial court on the
.
merits, whatever may be the reason for the dismissal
of the appeals arising from suits Nos. 77 and 91. In
these circumstances though the order of the High
Court itself may not be on the merits, the decision of
the High Court dismissing the appeals arising out of
suits Nos. 77 and 91 was to uphold the decision on
the merits as to issue of title and therefore it must be
held that by dismissing the appeals arising out of
suits Nos. 77 and 91 the High Court heard and
finally decided the matter for it confirmed the
judgment of the trial court on the issue of title arising
between the parties and the decision of the trial
court being on the merits the High Court's decision
confirming that decision must also be deemed to be
on the merits. To hold otherwise would make res
judicata impossible in cases where the trial court
decides the matter on merits but the appeal court
dismisses the appeal on some preliminary ground
thus confirming the decision of the trial court on the
merits. It is well-settled that where a decree on the
merits is appealed from, the decision of the trial
court loses its character of finality and what was
once res judicata again becomes res subjudice and
it is the decree of the appeal court which will then be
res judicata. But if the contention of the appellant
were to be accepted and it is held that if the appeal
court dismisses the appeal on any preliminary
ground, like limitation or default in printing, thus
confirming into the trial court's decision given on
merits, the appeal court's decree cannot be res
.
judicata, the result would be that even though the
decision of the trial court given on the merits is
confirmed by the dismissal of the appeal on a
preliminary ground there can never be res judicata.
We cannot therefore accept the contention that even
though the trial court may have decided the matter
on the merits there can be no res judicata if the
appeal court dismisses the appeal on a preliminary
ground without going into the merits, even though
the result of the dismissal of the appeal by the
appeal court is confirmation of the decision of the
trial court given on the merits. Acceptance of such a
proposition will mean that all that the losing party
has to do to destroy the effect of a decision given by
the trial court on the merits is to file an appeal and
let that appeal be dismissed on some preliminary
ground, with the result that the decision given on the
merits also becomes useless as between the
parties. We are therefore of opinion that where a
decision is given on the merits by the trial court and
the matter is taken in appeal and the appeal is
dismissed on some preliminary ground, like limitation
or default in printing, it must be held that such
dismissal when it confirms the decision of the trial
court on the merits itself amounts to the appeal
being heard and finally decided on the merits
whatever may be the ground for dismissal of the
appeal."
22. In Narhari (supra), there was single suit, which
.
was filed for possession of the land and for mesne profits. The
plaintiffs claimed possession on the ground that survey No. 214
was an inam land and according to the family custom belonged
to them exclusively as members of the senior line as against
the defendants who were of the junior lines. There were two
sets of defendants, namely, defendants Nos. 1 to 4 belonged to
one branch of the family and defendant Nos. 5 to 8 to another.
Each set claimed that they are in possession of one-third of the
land and maintained that they were entitled to it as their share
in the family property. They denied the custom of exclusive
possession by the senior branch, asserted by the plaintiffs. The
trial court decreed the suit in favour of the plaintiffs. Two
separate appeals were taken by the two sets of the defendants
to the first appellate court each claiming one-third portion of the
land and each paid the court fee to the extent of their share.
The first appellate court, allowed both the appeals and
dismissed the plaintiffs' suit by common judgment and directed
that a copy of the judgment be placed on the file of the other
connected appeal. On the basis of this judgment, two separate
decrees were prepared by the first appellate court. The plaintiffs
preferred two appeals to the High Court. In one appeal, the
decree passed in appeal of defendants No.1 to 4 was
.
attached/filed and in another appeal decree passed in appeal of
defendants No.5 to 8 was attached/filed. This latter appeal was
time barred having been filed 29 days days beyond the period
of limitation. It was filed on one-rupee stamp paper and a note
was made therein that the full court fee had been paid in the
appeal filed earlier registered as Appeal No. 331 of 1346 F. At
the hearing of the appeals, a preliminary objection was raised
by the defendants that as the other appeal i.e., No. 332 of
1346F. was filed beyond the period of limitation, it cannot be
maintained and that when the other appeal is thus dismissed,
the principle of res judicata would apply to the first appeal, i.e.,
No. 331 of 1346 and it should also fail. The High Court held that
the plaintiffs should have filed two separate appeals within the
period of limitation and as the other appeal was admittedly
time-barred, the first appeal also failed by the application of the
principle of res judicata. The High Court dismissed both the
appeals. Against this judgment of the High Court, two appeals
were preferred to the Judicial Committee of the State which
were made over to the Supreme Court under article 374(4) of
the Constitution. The Supreme Court while reversing the
judgment of the High Court in para 5 of the report held as
.
under:-
"5. The plaintiffs in their appeal to the High Court
have impleaded all the defendants as respondents
and their prayer covers both the appeals and they
have paid consolidated court-fee for the whole suit.
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
rbeen drawn up. As has been observed by Tek
Chand J. in his learned judgment in Mst. Lachmi v.
Mst. Bhuli mentioned above, the determining factor
is not the decree but the matter in controversy. As
he puts it later in his judgment, the estoppel is not
created by the decree but it can only be created by
the judgment. The question of res judicata arises
only when there are two suits. Even when there are
two suits, it has been held that a decision given
simultaneously cannot be a decision in the former
suit. When there is only one suit, the question of res
judicata does not arise at all and in the present
case, both the decrees are in the same case and
based on the same judgment, and the matter
decided concerns the entire suit. As such, there is
no question of the application of the principle of res
judicata. The same judgment cannot remain
effective just because it was appealed against with
a different number or a copy of it was attached to a
different appeal. The two decrees in substance are
one. Besides, the High Court was wrong in not
.
giving to the appellants the benefit of Section 5 of
the Limitation Act because there was conflict of
decisions regarding this question not only in the
High Court of the State but also among the different
High Courts in India."
23. In Ram Prakash vs. Charan Kaur (Smt) and
another, (1997) 9 SCC 543, two suits were filed by the
petitioner and respondents, claiming damages against each
other. Both the suits were tried together and dismissed. While
the judgment and decree passed in the suit of the petitioner
attained finality, no appeal having been preferred there against,
the suit of the respondent was decreed in first appeal filed by
him. The petitioner preferred second appeal against the decree
for damages granted against him. The second appeal
preferred by the petitioner for damages granted against him
was held to be bared by principle of res judicata as the
judgment dismissing his suit had attained finality.
24. In Rajni Rani and another vs. Khairati Lal and
others (2015) 2 SCC 682, the question that was raised before
the Supreme Court was whether an order of dismissal of the
counter-claim being barred by principles of Order 2, Rule 2 of
CPC, can be set aside by the High Court in exercise of
.
revisional jurisdiction under Section 115 of CPC or in exercise
of power of superintendence under Article 227 of the
Constitution of India or the same is required to be assailed by
preferring an appeal. The Supreme Court held that a counter-
claim preferred by the defendant in a suit is in the nature of a
cross-suit and by a statutory command even if the suit is
dismissed, counter-claim shall remain alive for adjudication. For
making a counter- claim entertainable by the court, the
defendant is required to pay the requisite court fee on the
valuation of the counter-claim. The plaintiff is obliged to file a
written statement and in case there is default the court can
pronounce the judgment against the plaintiff in relation to the
counter-claim put forth by the defendant as it has an
independent status. Interpreting the provisions of Order 8 Rule
6-A(2) of CPC, it was held that the court is required to
pronounce a final judgment in the same suit both on the original
claim and also on the counter-claim. The plaintiff can file an
application for exclusion of a counter-claim and can do so at
any time before issues are settled in relation to the counter-
claim. It was held that the purpose of the scheme relating to
counter-claim is to avoid multiplicity of the proceedings and
.
piecemeal adjudication. When a counter-claim filed by the
defendant is adjudicated on merits and dismissed, finality is
attached to it as far as the controversy in respect of the claim
put forth by the defendants is concerned. Nothing in that regard
survives as far as the said defendants are concerned. The
Supreme Court held that in the case at hand, the counter-claim
which is in the nature of a cross-suit has been dismissed.When
an opinion is expressed holding that the counter-claim is barred
by principles of Order 2, Rule 2 of CPC, it indubitably
adjudicates the controversy as regards the substantive right of
the defendants who had lodged the counter-claim. Nothing else
survives for the defendants who had field the counter-claim. It
cannot be regarded as an ancillary or incidental finding
recorded in the suit. Therefore, the order passed by the trial
court has the status of a decree and the challenge to the same
has to be made before the appropriate forum where appeal
could lay by paying the requisite fee. It could not have been
unsettled by the High Court in exercise of the power under
Article 227 of the Constitution of India. Holding thus, the order
of the High Court was set aside.
.
25. In Sri Gangai Vinayagar Temple and another
vs. Meenakshi Ammal and others, (2015) 3 SCC 624,
multiple suits were disposed of by one common judgment by
the trial court but by separate decrees. The appeal was
preferred against the decree passed only in one suit. The suit in
respect of which the decree was passed, but, no appeal was
filed there against, was held to have assumed the character of
former suit and therefore it was held that the finding recorded in
such decree having attained finality, would operate as res
judicata. One suit was filed by the respondents and two suits
were filed by the appellant. In pleadings of all suits, the
respondents directly and substantially raised question of
appellants' title over suit property. While the suit filed by the
respondents was dismissed, one suit of the appellants
regarding rent arrears was decreed but another suit of the
appellants was dismissed by the trial court by a common
judgment in view of common issues, common trial and common
evidence involved in three suits. An appeal was filed by the
respondents against only one of the decrees. It was held that
non-filing of appeals by the respondents and the appellants
against all the respective adverse decrees, resulted in their
attaining status of former suit and finality and this consequence
.
permeated into sinews of all three suits. Accordingly, finding
that the appellants had title over the suit property, contrary to
the respondents claim, had become final and operated as res
judicata. In absence of appeals against adverse decrees the
respondents were barred by the principle of res judicata from
challenging findings of trial court especially in regard to the
appellant Trust's ownership of demised property. Similarly, the
appellant Trust not having filed any appeal against any of the
decrees, all findings against it had also attained finality.
26. In Satya Devi vs. Partap Singh and others, AIR
2006 HP 75, this Court was dealing with regular second appeal
filed by defendant-appellant Smt Satya Devi against the
judgments and decrees of the Courts below whereby the two
suits, one filed by Partap Singh and the other Smt. Suhli Devi,
were decreed and the sale deed in favour of Smt. Satya Devi
was held to be illegal and void and the first appeal filed by Smt.
Satya Devi, was dismissed by the learned District Judge. In that
case, both the suits were consolidated and it was directed that
the evidence recorded in one suit shall be treated as the
evidence recorded in the other. Thereafter, both suits were
decreed by a common judgment. Aggrieved against the same,
.
Smt. Satya Devi, who was the defendant in both the suits, filed
only one appeal before the District Judge alongwith the
memorandum of appeal, certified copy of the common
judgment was filed along with the certified copy of one of the
decrees i.e. the decree passed in Civil Suit No. 199 of 91/RBT
18/95 titled Smt. Suhli Devi vs Milkhi Ram etc. The certified
copy of the decree sheet in the other suit filed by Partap Singh
titled Partap Singh vs. Smt. Suhli Devi was not filed along with
the memorandum of appeal. This appeal was filed on
27.1.1998 prior to the coming into force of the Code of Civil
Procedure (Amendment) Act, 1999, with effect from 1.7.2002.
Therefore, as per the provisions of the relevant time, the
memorandum of appeal was required to be accompanied by a
certified copy of the decree appealed from unless the appellate
Court dispenses with the same and also the certified copy of
the judgment on which it was founded. This court after relying
on the judgment of Supreme Court in Jagat Dhish Bhargava
vs. Jawahar Lal Bhargava and others, AIR 1961 SC 832 held
that filing of decree along with memorandum of appeal is
mandatory, and in the absence of the decree, filing of the
appeal would be incomplete, defective and incompetent. It
.
was therefore held that the appeal which was filed by
Smt.Satya Devi before the District Judge, could be treated as
an appeal only against the decree passed by the trial Court in
the suit filed by Smt. Suhli Devi, inasmuch as, only copy of the
decree passed by the trial Court in the suit filed by Smt. Suhli
Devi was filed along with common judgment and the
memorandum of appeal and the copy of the decree passed by
the trial Court in the other suit filed by Partap Singh was not
filed along with the memorandum of appeal and the copy of the
common judgment. This Court therefore concluded that the
decree passed by the trial Court in the civil suit filed by Partap
Singh was not appealed against by Smt. Satya Devi and the
said decree had become final. Relying upon the judgment of
the Supreme Court in Premier Tyres Limited (supra) it was
held that the appeal filed by Smt. Satya Devi was liable to be
dismissed, since Smt. Satya Devi had filed only one appeal
against the two decrees, whereby the suits filed by Partap
Singh and Smt. Suhli Devi had been decreed by the trial Court
and only one appeal was filed against the decree passed in the
suit filed by Smt. Suhli Devi and in this manner, the decree
passed in the suit filed by Pratap Singh became final between
.
the parties and the findings recorded therein would be res
judicata in the appeal filed by Smt. Satya Devi against the
decree in the suit filed by Smt. Suhli Devi.
27. In Kedar Singh (supra), this court was dealing with
regular second appeal filed against the judgment and decree
passed by the District Judge, Kinnaur Civil Division at Rampur
Bushahr, affirming the judgment and decree passed by Civil
Judge (Senior Division), Kinnaur camp at Rampur Bushahr. The
respondent-plaintiff in that case filed a suit for recovery of
Rs.10,512.94 paise against appellant-defendant. The
defendant by filing written statement refuted the claim of the
respondent-plaintiff. The appellant-defendant filed a counter
claim to the tune of Rs.30,600/- and the respondent-plaintiff
filed written statement to the counter claim filed by the
appellant-defendant wherein it was stated that the counter
claim made by the defendant is not maintainable in the present
form because it should have been made in the written
statement as provided under Order 8 Rule 1(A) of CPC
Procedure and all the documents on which he relies should
have been filed with the written statement. The objection was
also raised that the counter claim was time barred. The trial
.
Court vide judgment and decree dated 18.6.2004 decreed the
suit for recovery in favour of the plaintiff but dismissed the
counter claim filed by the defendant. Aggrieved thereby, the
appellant-defendant preferred a composite appeal before the
District Judge Kinnaur at Rampur Bushahr H.P, which was
dismissed. The appellant-defendant thereafter filed Regular
Second Appeal before this Court. The second appeal was
admitted on question of law "whether the two courts below
have erred in dismissing the counter claim, on the ground that
the counter claim when preferred, had become barred by time."
An objection was raised that dismissal of the counter claim,
even if the formal decree was not drawn but by reason of the
fact that rights of the parties are finally adjudicated, assumes
the status of a decree and needs to be separately challenged
by filing separate appeal affixing required court fee. Reliance
was placed on the judgment of the Supreme Court in Rajni
Rani (supra), Laxmidas Dayabhai Kabrawala (supra) and the
judgment of this Court in RSA No.293 of 2006, titled as Piar
Chand & Others vs. Ranjeet Singh & Others. The argument
of the appellant-defendant was that since the trial Court had not
drawn formal decree while dismissing the counter claim, there
.
was no occasion for him to file separate appeal. Repelling this
argument, it was held that the definition of "decree" under
Section 2(2) of CPC clearly suggests that there has to be
formal expression of adjudication, the trial court may nor may
not draw formal decree but if by virtue of order of the court,
rights have finally been adjudicated, the same would assume
status of a decree. The trial Court while rejecting the counter
claim specifically observed that no counter claim could be
entertained being hopelessly time barred. Although, it is true
that counter claims being in nature of cross-suit, the trial court
ought to have passed separate decree specially dismissing the
counter claim but the argument of the defendant that he was
not required to challenge the judgment on the counter claim
because of non-preparation of decree cannot be accepted, held
this Court.
28. This Court in Parso vs. Dummu Ram and others,
2017(3) SimLC 1270, was dealing with a case where the
respondents-plaintiffs filed a suit for declaration for permanent
prohibitory injunction against the appellant-defendant. The
defendant-appellant in that case had filed counter claim. While
the suit filed by the respondents-plaintiffs was dismissed, the
.
counter claim filed by the defendant-appellant was allowed. The
respondents-plaintiffs filed a single appeal against the dismissal
of the civil suit and allowing of counter claim. The first appellate
court allowed the appeal thereby decreed suit filed by the
respondents-plaintiffs and set aside the decree passed in
favour of the defendant-appellant in counter claim. This Court
relying on the judgments of the Supreme Court in Ramagya
Prasad Gupta (supra), Premier Tyres Limited (supra), Ram
Prakash (supra) and Shri Gangai Vinayagar Temple (supra),
set aside the judgment of the first appellate court and held that
the said court erred in not appreciating that in the absence of
two separate appeals filed against the judgment and decree
passed by the trial court in suit as well as in counter claim,
adjudication in one matter acted as res-judicata qua the other
and therefore the single appeal was barred by principle of res
judicata and not maintainable.
29. This Court in Mohan Singh (supra) was also
dealing with identical case in the suit filed by the plaintiff which
was dismissed and the counter claim filed by the defendants
was decreed. The plaintiff filed a composite appeal
thereagainst. This Court held that since no challenge has been
.
laid to the judgment and decree passed by the trial Court
decreeing the counter claim of the defendants, whereby they
have been declared to be owner-in-possession of the suit
property, composite appeal laying challenge to the judgment
and decree passed by the civil court in civil suit was not
maintainable. Relief as claimed in the appeal having been filed
by the appellant-plaintiff could not be extended to him without
setting aside the judgment and decree passed in the counter
claim. The contention of the appellant-defendant that in the
absence of specific decree drawn by learned trial Court at the
time of decreeing the counter claim filed by the defendants,
plaintiff could not file separate appeal was rejected and the
appeal was dismissed by this Court.
30. This Court in H.P. State Forest Corporation
through its Divisional Manager vs. Kahan Singh,
2017(Vol.1) Him. L.R. 36, was dealing with a case where trial
court while partly allowing the suit for recovery filed by the
plaintiff, dismissed counter claim filed by the defendant, vide
which the defendant had prayed for decree for recovery of a
sum of Rs.60,031/-. The defendant rather than filing two
separate appeals, one against against the decree which was
.
passed in favour of the plaintiff by trial court in his civil suit and
second against the dismissal of his counter claim, filed only one
appeal before the first appellate court. It was held that the
defendant erred in doing so because the partial decreeing of
the suit of the plaintiff and dismissal of the counter claim of the
defendant were two distinct adjudications, though made by way
of same judgment and decree by trial court. Both these
adjudications assumed the status of a decree. They were
required to be challenged separately and filing only one appeal
against both the said adjudications was not permissible in law
as the adjudication of suit as well as counter claim assumes the
status of two distinct decrees.
31. This Court in Piar Chand and others vs. Ranjeet
Singh and others, 2016 (supp) Shim. LC 612 was dealing
with a case in which the plaintiff filed a suit for declaration and
injunction whereas the defendant filed counter claim. The trial
court decreed the suit and dismissed the counter claim.
Aggrieved thereby, the defendant-respondent approached the
court of District Judge by filing regular first appeal under
Section 96 of CPC while praying for setting aside the judgment
and decree passed by the trial court, the defendant in his
.
appeal also prayed for allowing the counter claim. The
Additional District Judge, Ghumarwin vide his judgment and
decree dated 20.3.2005 accepted the appeal preferred by the
defendants by setting aside the judgment and decree passed
by the learned trial Court and also decreed the counter claim of
the defendants.
r The plaintiff approached this Court in the
regular second appeal. The argument of the defendants before
this Court was that since no separate decree was prepared by
the trial court while dismissing the counter claim, the
defendants were justified in filing a common appeal. This Court
relying on the judgment of the three-Judge Bench of the
Supreme Court in M/s. Ram Chand Spg. & Wvg. Mills vs.
M/s. Bijli Cotton Mills (P) Ltd., AIR 1967 SC 1344 held that by
virtue of the order of the court passed in the counter claim,
rights of the parties were finally adjudicated and therefore such
order would assume the status of decree. The Supreme Court
in that case held that the court may or may not may not draw
formal decree, but if rights are finally adjudicated, it would
assume the status of decree. The Supreme Court further held
that in such like situation, the order passed by trial court has the
status of decree and challenge to the same has to be made
.
before the appropriate forum where appeal could lay by paying
the requisite fee.
32. A view contrary to the other judgments of this Court
has been taken by the learned Single Judge in Pohlo Ram
(supra) when Court was dealing with a case where suit for
injunction filed by the plaintiff had been partly decreed by the
trial court and the counter claim filed by defendant No.2 therein
seeking a decree for declaration was dismissed by the trial
court. The question that arose before the learned Single
Judge of this court was with regard to the maintainability of
single appeal in teeth of suit being partly decreed and the
counter claim being dismissed . It was held that mere non-filing
of two appeals would be of no consequence, the lower
appellate court had accepted the appeal of defendant No.2 only
in respect of decree passed by the trial court, vide which the
suit of the plaintiff had been partly decreed. So far as the
dismissal of the counter-claim filed by defendant No.2 is
concerned, the trial court had not granted any relief to
defendant No.2 and, as such, the dismissal of the counter claim
of defendant No.2 had not been set aside by the learned
Additional District Judge while deciding the appeal filed by
.
defendant No.2 and as such it cannot be said that the appeal
filed by defendant No.2 against the judgment and decree dated
25.8.1999, vide which the suit of the plaintiff was partly
decreed, was not maintainable merely because defendant No.2
had not filed a separate appeal challenging the dismissal of his
counter-claim. Even if defendant No.2 while filing the appeal
had challenged the findings of the trial Court not only with
regard to the suit of the plaintiff having been partly decreed but
also with regard to the dismissal of his counter-claim, the same
would be of no consequence since nothing has come on the
record to show that during arguments the counsel appearing for
defendant No.2 before the lower appellate court had also
sought any relief against the dismissal of the counter-claim filed
by him. The question of filing two separate appeals would arise
only if the defendant was also pressing his counter-claim, which
was dismissed by the learned trial court and the question
regarding the counter-claim could be considered only if
defendant No.2 had filed two appeals, one against the suit of
the plaintiff having been partly decreed and the other against the
dismissal of the counter claim. In case defendant No.2 is not
seeking relief before the lower appellate Court in respect of the
.
counter-claim, it would not be necessary for him to file two
separate appeals against the judgment and decree of the trial
court.
33. Before the Gujarat High Court in Darayas Bamanshah
Medhora vs. Nariman Bamansha Medhora, AIR 2002 Gujrat
166, there were two cross suits between the very same parties
and the subject matter of dispute was also with regard to the
same property, and that the reliefs sought by each plaintiff in
their respective suits were similar. The trial court by consent of
parties consolidated the two suits and directed that they be tried
together. Consequently, the two suits were consolidated,
common issues were framed, common evidence was led, and
the two suits were decided by a common judgment. As a result
of the common judgment, the suit filed by the appellant before
the High Court was dismissed, whereas the suit filed by the
respondent was allowed. Both the suits were decided by
common judgment although it dealt with two separate suits and
consequently the common judgment resulted in two separate
and distinct decrees. An appeal under Section 96 CPC. was
filed by the appellant before the High Court challenging the
decree passed in Special Civil Suit No. 700 of 2000 filed by the
.
respondent. The respondent, however, contended that since
two suits were decided by a common judgment, each suit
resulted in a separate and independent decree, and therefore,
an appeal filed from only one of the decrees would be
incompetent. The Gujarat High Court, after examining various
judgments of the Supreme Courts and different High Courts
and mainly relying on the judgment of the Supreme Court in
Premier Tyres Limited (supra) and Sheodan Singh (supra),
Ramagya Prasad Gupta (supra) in para 10.4, 11 and 18 held
as under:-
"10.4 The entire controversy in law as to whether a
single appeal would lie from one of the decrees arising
from a common judgment has been considered in the
various decisions aforesaid, only by testing against
and applying the principle of res judicata. In the
context of these decisions it is necessary to bear in
mind that a reference to the judgment, and
consequently a reference to a supposed judgment
resulting in one of the decrees, is only necessary to
ascertain whether the question substantially in issue"
was common in both the suits.
11. While considering the aforesaid decisions,
which, as aforesaid, have also been considered by
the subsequent decisions of the Supreme Court, it
also requires to be kept in mind that the principle of
.
res judicata is not the only principle upon which this
legal controversy can be reflected upon. Another
principle which, in our opinion, would have a bearing
on this controversy is the principle of acquiescence
and/or estoppel. This principle would also apply to
the controversy in issue, inasmuch as it could be
urged that when only one decree is challenged in
the singular appeal, the other decree which is not
the subject matter in appeal, is a decree which is
acquiesced to. Ultimately it makes no difference
whether the same set of reasons and the same set
of findings justify both the decrees. This may
perhaps appear to be similar to calling a glass half
full or also calling it half empty. It may be that such a
description carries different concepts, although the
factual result is the same. The distinction in law lies
in the real and substantive distinction between an
appeal from a judgment and an appeal from a
decree. Once this distinction is established and kept
in mind, it becomes a simpler exercise to appreciate
the view expressed by the Supreme Court in the
decisions hereinafter discussed.
12 to 17. xxxxx xxxxx xxxxx
18. In the premises aforesaid, we are of the opinion
that the present appeal is not maintainable and is
consequently dismissed with no order as to costs."
34. The Rajasthan High Court in Iqbal Banu (supra),
while examining the judgment of this Court in Parso Ram
(supra) held that this Court in that judgment did not notice the
.
provisions contained in Order 20 Rule 19 of CPC, which
provides that where the defendant has been allowed a counter
claim against the claim of the plaintiff, the decree shall state so.
Sub rule (2) of Rule 19 of Order 20 of CPC deals with the
appeal from decree relating to counter claim which expressly
provides that any decree passed in a suit in which a counter
claim is claimed, shall be subject to the same provisions in
respect of appeal to which it would have been subject if no set-
off or counter-claim had been claimed. The Rajasthan High
Court therefore held that the language of this 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 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.
35. Even though Sections 96 and 100 of the Code of
.
Civil Procedure provide that the appeal shall lie from every
decree passed by any Court exercising, original jurisdiction or
first Appellate jurisdiction respectively but the mandatory
requirement of filing decree alongwith the memorandum of
appeal has been some what relaxed by amending Act 46 of
1999 whereby Rule 6-A was inserted in Oder 20 of the Code of
Civil Procedure, while sub Rule (1) provides that every
endeavour shall be made to ensure that the decree is drawn up
as expeditiously as possible and in any case, within 15 days
from the date of pronouncement of the judgment. But further
sub Rule (2) stipulates that an appeal may be preferred against
the decree without filing a copy of the decree and in such case
the copy of the judgment made available to the parties by the
Court, shall for the purpose of Rule 1 of Order 21 be treated as
decree. This is however subject to a rider that as soon as the
decree is drawn, the judgment shall cease to have the effect of
a decree for the purpose of execution or any other purpose.
There may be two situations emerging out of this, first; where
the trial Court in terms of Order 20 Rule-6-A (1) has
prepared the decree little later than the delivery of the
judgment, which as per the requirement of the said provisions,
should be within 15 days and secondly suits in which counter-
.
claim has also been decided, may be by a common order or a
separate judgment but where only a common decree has been
prepared or no separate decree is prepared on counter claim.
Even in such situation the order by itself would tantamount to
decree. In Rajni Rani case, supra, the Supreme Court
examined the question as to when can an order amount to a
decree and held that the order of dismissal of counter-claim by
itself constitutes a decree. It was held that when a counter-
claim is conclusively adjudicated on merits and dismissed by
order of the Court, finality is attached in respect of the rights of
the defendant. Such order of dismissal on the ground of being
barred under Order 2 Rule 2 amounts to decree where against
the appeal is the proper remedy and a Revision Petition under
Section 115 of the CPC and Petition under Article 227 of the
Constitution, would not be maintainable.
36. This Court in Kedar Singh's case, supra, was
dealing with a case where the trial Court decreed the suit for
recovery in favour of the plaintiff but dismissed the counter
claim filed by the defendant. Aggrieved thereby, the appellant-
defendant preferred a composite appeal before the first
Appellate Court which was dismissed. The appellant thereafter
.
filed Regular Second Appeal before this Court. The second
appeal was admitted on question of law "whether the two
courts below have erred in dismissing the counter claim, on the
ground that the counter claim when preferred, had become
barred by time." An objection was raised that dismissal of the
counter claim, even if the formal decree was not drawn but by
reason of the fact that rights of the parties are finally
adjudicated, assumes the status of a decree and needs to be
separately challenged by filing separate appeal affixing required
court fee. The Trial Court rejected the counter-claim by
observing that the same being hopelessly time barred, would
not be entertained.
37. Even in Mohan Singh's case, supra, in which the
plaintiff filed a composite appeal against the order dismissing
the suit and counter claim, contention of the appellant-
defendant that in the absence of specific decree drawn by
learned trial Court at the time of decreeing the counter claim
filed by the defendants, plaintiff could not file separate appeal,
was rejected and the appeal was dismissed by this Court. In
Piar Chand's case supra, this Court was dealing with a case
in which the plaintiff filed a suit and the defendant filed counter
.
claim. The trial Court decreed the suit and dismissed the
counter claim. The plaintiff approached this Court in the regular
second appeal. The objection was raised before this Court that
since no separate decree was prepared by the trial court while
dismissing the counter claim, the defendants were justified in
filing a common appeal. This Court relying on the judgment of
the three-Judge Bench of the Supreme Court in M/s. Ram
Chand Spg. & Wvg. Mills case supra held that by virtue of the
order of the court passed in the counter claim, rights of the
parties were finally adjudicated and therefore such order would
assume the status of decree. The Supreme Court in that case
held that the court may or may not draw formal decree, but if
rights are finally adjudicated, it would assume the status of
decree. It was held that such an order has to be also treated as
a decree.
38. Now coming to Order 20 Rule 19 CPC wherein
counter claim has been inserted along with set off by amending
Act 104 of 1976 w.e.f. 1.2.1977. Sub-Rule 1 of Rule 19 of
Order 20 provides 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. An argument has
been raised that a common appeal against a decree passed in
the suit as well as the counter claim can be maintainable by
relying on the judgment of Rajasthan High Court in Iqbal
Banu's case, supra . Order 20 Rule 19 (2), inter alia provides
that any decree passed in a suit in which set off or counter
claim is claimed, shall be subject to the same provisions in
respect of an appeal to which it would have been subject if no
set off or counter claim had been claimed. The Rajasthan High
Court in Iqbal Banu's case supra while interpreting Order 20
Rule 19 (2) CPC held that the language of this 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 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. We find ourselves
.
unable to agree with this interpretation because Order 20 Rule
19 (2) CPC merely contemplates drawing of a decree in case of
set off or counter claim, which by virtue of this enabling
provisions has been made subject to the same provision in
respect of appeal to which it would have been subject if no set
off or counter claim was filed. The word "counter-claim" inserted
in the provisions of Order 20 Rule 19(2) CPC by virtue of
amendment does not mean that no separate decree would be
required to be prepared on decision of the counter claim or that
decision would not be treated as a decree necessitating filing of
a separate appeal. Sub-rule 2 of Rule 19 of Order 20 is
therefore, merely an enabling provision 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 subject if no set-
off or counter-claim had been claimed. But there is no warrant
to read into this that one appeal would suffice the challenge to
judgment and decree passed both in suit and counter claim/set
off.
39. Order 41 Rule 1 of CPC provides that every
.
appeal shall be preferred in the form of a memorandum signed
by the appellant or his pleader and presented to the Court or to
such officer as it appoints in this behalf. The memorandum shall
be accompanied by a copy of the judgment. This provision
earlier provided that memorandum of such appeal shall be
accompanied by a copy of decree but now the word "decree"
has been deleted by Act of 46 of 1999 w.e.f. 1.7.2002 by
substituting the same with copy of judgment. Proviso to Order
41 Rule 1 however stipulates that where two or more suits
have been tried together and a common judgment has been
delivered therefor and two or more appeals are filed against
any decree covered by that judgment, whether by the same
appellant or by different appellants, the Appellate Court may
dispense with the filing of more than one copy of the judgment.
40. The contention that the counter-claim cannot be
tried as an independent suit for all purposes but is deemed to
be an independent suit for the purposes as mentioned in the
Code under Order 8 Rule 6A (2), (3) & (4) and for the purpose
of limitation as per Section 3(2)(b) of the Limitation Act, 1963,
cannot be countenanced for reasons to be stated presently. We
also cannot agree with the argument that if the counter claim is
to be treated as a separate suit, independent from the main
.
suit, then it would amount to rewriting Order 8 Rule 6A (2),
which mandates "a final judgment" and in "same suit". Further
argument that treating counter claim as a separate suit would
mean that there will be a "common judgment" as against the
"final judgment" and that it will be common for "both the suits"
as against the mandate of having it in the "same suit" per Order
8 Rule 6A (2) also does not convince us. Further submission
that since the counter claim can also be set up through
amendment (Order 8 Rule 8 the Code) and by way of
subsequent pleadings (Order 8 Rule 9 the Code), treating the
counter claim as an independent suit would mean that a suit
may be filed by way of amendment or by way of subsequent
proceedings, is also not founded on a sound interpretation. One
of the consequence of the amendment in 1976 amendment in
Order 8 by virtue of insertion of Rule 6-D is that if in any case
in which the defendant sets up a counter claim the suit of the
plaintiff is stayed, discontinued or dismissed, the counter claim
may nevertheless survives. Moreover, this clearly signifies
independent character of the counter-claim. A reading of Order
20 Rule 19 (1) clearly shows that separate decrees are required
to be prepared for set off as well as counter claim which 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. Order 20 Rule 19 (2),
inter alia provides that any decree passed in a suit in which set
off or counter claim is claimed, shall be subject to the same
provisions in respect of an appeal to which it would have been
subject if no set off or counter claim had been claimed.
41. The Supreme Court in Laxmidas Dayabhai case
supra examined the question whether there is anything in law
which precludes to treat the counter claim as a plaint in a cross
suit and answered the same in the negative. The Supreme
Court held that even though CPC prescribes the contents of a
plaint and it might very well be that a counter claim, which is to
be treated as a cross-suit, might not conform to all these
requirements but this by itself is not sufficient to deny to the
Court the power and the jurisdiction to read and construe the
pleadings in a reasonable manner. If, for instance, what is really
a plaint in a cross-suit is made part of a Written Statement
either by being made an annexure to it or as part and parcel
thereof, though described as a counter-claim, there could be no
legal objection to the Court treating the same as a plaint and
.
granting such relief to the defendant as would have been open
if the pleading had taken the form of a plaint. The unamended
provisions of CPC prior to 1976 was that any respondent
though he may not have filed an appeal from any part of the
decree, may still support the decree to the extent to which it is
already in his favour, at the same time by laying challenge to a
finding recorded in the impugned judgment against him. That
however, is not the position of law now after 1976 amendment
in CPC. After the 1976 Amendment of Order 41 Rule 22, the
insertion made in sub-rule (1) thereof makes it permissible to
file a cross-objection against a finding. The difference is
basically that a respondent may defend himself without taking
recourse to file a cross-objection to the extent the decree
stands in his favour. But if he intends to assail any part of the
decree, it is obligatory on his part to file the cross-objection.
Post-amendment, read in the light of the Explanation to Order
41 Rule 22(1) though it is still not necessary for the respondent
to take any cross-objection laying challenge to any finding
adverse to him as the decree is entirely in his favour, yet he
may support the decree without cross-objection. It gives him the
right to take cross-objection to a finding recorded against him
.
either while answering an issue or while dealing with an issue.
After the aforesaid amendment in CPC, if the appeal stands
withdrawn or dismissed in default, the cross-objection taken to
a finding by the respondent would still be adjudicated upon on
merits which remedy was not available to the respondent under
the unamended CPC, the Supreme Court held.
42. The principles deducible from the afore-discussed
law can be summarized as follows:-
(i) When two suits are consolidated and tried together with
common issues framed and common evidence led by the
parties, resulting in a common judgment and decree, the same
can be subjected to challenge by way of a single appeal at the
instance of the aggrieved party;
(ii) Where a single appeal is filed questioning the judgment
and decree passed in two suits, which were consolidated and
decided by a common judgment, decision of such single
appeal, by a common judgment, reversing or modifying the
claim in one suit out of the two, can be challenged by the
aggrieved party also, in a single appeal.
.
(iii) When two suits though not consolidated but are decided
by a common judgment, resulting into preparation of two
separate decrees, the aggrieved party would be required to
challenge both of them by filing separate appeals;
(iv) When both the suit and the counter claim are decreed by
a common judgment, regardless of whether separate decree
has been prepared in the counter claim, both would be required
to be challenged by separate appeals;
(v) In a case where two separate appeals are required to be
filed against judgment of the suit and the counter claim and if
appeal is filed only against one and not against the other, non
filing of appeal against such judgment and decree would attach
finality thereto and would attract not only the principle of res-
judicata but also waiver and estoppal and the judgment and
decree not appealed against would be taken to have been
acquiesced to by the party not filing appeal;
(vi) When however, two appeals are filed against a common
judgment passed by the trial Court, both by the plaintiff and the
defendant, and are disposed of by the first appellate Court by
modifying/reversing/affirming judgment of the trial Court, the
aggrieved party, would be required to challenge both by two
.
separate appeals, in absence of which, non-filing of appeal
against one shall attract bar of the principles of res-judicata
against another.
(vii) Where more than one appeals are required to be filed or
are filed and one or more of them are dismissed for default,
delay or any other similar reason, any such situation would
attract res judicata and such dismissal would satisfy the
requirement of appeal being heard and finally decided on merits
"in a former suit" for the purpose of attracting principles of res
judicata.
43. In view of the position of law delineated
hereinabove, the judgment passed by this Court in RSA No.561
of 2005, titled Pohlo Ram vs. Jindu Ram and others decided
on 28.10.2005 cannot be held to have laid down good law
whereas judgments passed in (i) Smt. Satya Devi vs. Partap
Singh and others, AIR 2006 HP 75 and (ii) H.P. State Forest
Corporation through its Divisional Manager vs. Kahan
Singh, 2017(1) Him. L.R. 36 and in (iii) Mohan Singh vs.
Inder Singh & others 2017(1) Him. L.R. 368, are held to have
been decided correctly.
.
44. Referred question having been answered thus, let
the matters may now be placed before the appropriate Bench
as per Roster.
( Mohammad Rafiq )
Chief Justice
r ( Jyotsna Rewal Dua )
May 17, 2022 Judge
(vt /cm Thakur)
