Smt Revti Bai vs Hemant Kumar
2023 Latest Caselaw 6554 MP

                          1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 24th OF APRIL, 2023
               SECOND APPEAL No. 1170 of 2019

BETWEEN:-

1.    SMT REVTI BAI W/O LATE PURUSHOTTAM
      DAS GUPTA MPEB COLONY, KARELI, DIST.
      NARSINGHPUR (MADHYA PRADESH)
2.    SMT.   MEENA   GUPTA   D/O  LATE
      PURUSHOTTAM DAS GUPTA OCCUPATION:
      SELF EMPLOYED MPEB COLONY KARELI
      (MADHYA PRADESH)
                                                .....APPELLANTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)

AND

1.    HEMANT KUMAR S/O BABULAL, AGED
      ABOUT 36 YEARS, VILL. BAKANIYA, TEH.
      HUZUR DIST BHOPAL, PRESENTLY R/O
      NEAR MPEB WORK SHOP MANDI , SEHORE
      (MADHYA PRADESH)

2.    GULNARAYAN S/O SHRI NANHULAL
      NAGAR VILLAGE BAKANIYA TAH. HUZUR
      (MADHYA PRADESH)

3.    STATE OF M.P. THROUGH COLLECTOR
      OLD   SECRETARIAT   BHOPAL  M.P.
      (MADHYA PRADESH)

4.    SMT. JANKI BAI D/O LATE PREMNARAYAN
      GUPTA VILLAGE BALIHARI DISTT.KATNI
      (MADHYA PRADESH)

5.    KAMLESH GUPTA S/O SHRI BADRIPRASAD,
      AGED ABOUT 33 YEARS, VILLAGE POST
                                     2


         MOHNA    TAH.  MOHAN                  BADODIYA
         (MADHYA PRADESH)
                                                             .....RESPONDENTS
   (RESPONDENT NO.1 BY SMT.SANJANA SAHNI - ADVOCATE)
   (RESPONDENT/STATE BY SMT.SHANTI TIWARI - PANEL LAWYER)

         This appeal coming on for admission this day, the court passed the
   following:
                                     ORDER

1. The appeal being arguable is admitted on the following substantial question of law :-

"i) Whether the first appellate court erred in law by not hearing R.C.A.No.9200225-A/2017 and R.C.A.No.9200232- A/2017 analogously?"

2. Since the respondent no.1/plaintiff is being represented by his counsel, therefore, the appeal is heard finally.

3. This second appeal under section 100 CPC has been filed against the judgment and decree dated 4.8.2018 passed by 11th Addl. District Judge, Bhopal in R.C.A.No.9200232-A/2017 arising out of judgment and decree dated 23.9.2017 passed by 19th Civil Judge Class I, Bhopal in Civil Suit No.335-A/2009.

4. It is submitted by counsel for the appellant that the plaintiff/respondent no.1 preferred a suit for declaration of title and permanent injunction and the appellants filed a counter claim seeking declaration of title, possession, permanent injunction and declaration that the mutation order is bad.

5. By judgment dated 23.9.2017 the suit filed by the respondent no.1/plaintiff was dismissed, however, the counter claim filed by the appellant was partially allowed. It is submitted by counsel for the

appellant that against dismissal of the suit, the respondent no.1/plaintiff filed R.C.ANo.9200232-A/2017 whereas the appellant filed R.C.A.No.9200225-A/2017, which is still pending. It is submitted by counsel for the appellant that since both the appeals were filed against the same judgment and decree, therefore, both the appeals should have been heard analogously.

6. Per contra, counsel for the respondent no.1 admitted that Regular Civil Appeal No.9200225-A/2017 filed by the appellant is still pending. However, it is submitted that since appellant was proceeded ex-parte in R.C.A.No.9200232-A/2017, therefore, the submission that both the appeals should have been heard analogously may not be accepted.

7. Heard the learned counsel for the appellant.

8. It is true that a counter claim is also a suit but if the counter claim is filed and two different appeals are filed by two different parties, i.e. plaintiff and defendant, against the same judgment and decree then both the appeals should be heard analogously. By not deciding both the appeals together there is every possibility of conflict of judgment. Rejection of counter claim may result in decreeing of suit by holding that the plaintiff has successfully established his title and dismissal of the plaint may result in decreeing the counter claim by holding that the defendants have successfully established their title.

9. Under these circumstances, the substantial question of law is answered in affirmative.

10.As a consequence thereof, the judgment and decree dated 4.8.2018 passed by 11th ADJ Bhopal in R.C.A.No.9200232-A/2017 is hereby set aside. The matter is remanded back to the first appellate court to decide R.C.A.No.9200232-A/2017 and R.C.A.No.9200225-A/2017 analogously.

11.Needless to mention here that this Court has not considered the merits of the case. This appeal is being decided purely on technical ground. Therefore, setting aside of judgment and decree passed by the first appellate court in R.C.A.No.9200232-A/2017 should not be treated as a judgment on merit and the first appellate court shall decide both the appeals without getting influenced or prejudiced by any of the findings given by first appellate court in R.C.A.No.9200232-A/2017 or this Court.

12.With aforesaid observation, the appeal succeeds and is allowed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.04.25 18:59:10 +05'30' HS