"Sukhbiri vs Maheshlata & Another"
2021 Latest Caselaw 5394 UK

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      29.12.2021                        SA No.98 of 2021
                                        Hon'ble Alok Kumar Verma, J.

This Second Appeal has been filed against the judgment and decree dated 04.09.2021, passed by the learned 3rd Additional District & Sessions Judge, Haridwar in Civil Appeal No.07 of 2005, "Sukhbiri vs. Maheshlata & Another", whereby the appeal, filed by the respondent-defendant, has been partly allowed and the judgment and decree dated 29.11.2004, passed by the learned Trial Court in favour of the appellants- plaintiffs, has been set aside.

Heard Mr. Tapan Singh, learned counsel for the appellants.

The learned counsel for the appellants submitted that the respondent-defendant did not file any appeal against the dismissal of counter- claim and the learned Trial Court has wrongly mentioned that an appeal, filed by the respondent-defendant, was dismissed.

The learned counsel for the appellants further submitted that the respondent-defendant has not filed any appeal against the judgment and decree of the learned Trial Court, whereby the counter-claim of the respondent- defendant was dismissed. The respondent-defendant had filed the First Appeal only against the judgment and decree of the learned Trial Court, whereby the learned Trial Court had allowed the original suit of the appellants-plaintiffs.

According to the learned counsel for the appellants, the first appeal, filed by the respondent-defendant, was not maintainable.

In support of his submission, the learned counsel for the appellants has relied upon a judgment dated 25.02.2020, passed by the Coordinate Bench of this High Court in Second Appeal No.16 of 2020, "Deedar Singh & Ors. vs. Malkeet Singh".

This Second Appeal is admitted on the following substantial questions of law:-

(1) Whether the learned First Appellate Court has committed an error of law in partly allowing the appeal, while the respondent-defendant did not file any appeal against the dismissal of her counter-claim? (2) Whether the First Appeal, filed by the respondent-defendant, was barred by principles of Res-judicata?

Issue notice to the respondent.

Steps to be taken within a week.

List this case on 28.02.2022. In the facts and circumstances of the case, the parties are directed to maintain status-quo qua the nature of the property till the next date of listing.

(Alok Kumar Verma, J.) 29.12.2021

JKJ/Neha