Virender Singh, Judge
1. The appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and
decree, dated 29.11.2001, passed by the Court of learned District Judge, Solan, H.P. (hereinafter referred to as ‘the First Appellate Court’), in
Civil Appeal No. 67 of 2000, titled as, ‘Mast Ram & Others versus Bhupinder Nath & another’.
2. Vide judgment and decree, dated 29.11.2001, the learned First Appellate Court had allowed the appeal, preferred by the respondents, against the
judgment and decree, dated 27.9.2000, passed by the Court of learned Senior Sub Judge, Solan, H.P. (hereinafter referred to as ‘the learned trial
Court’), in Civil Suit No. 2/1 of 1995, titled as, ‘Bhupinder Nath & another versus Mast Ram & others’.
3. Vide judgment and decree, dated 29.11.2001, the learned First Appellate Court, while allowing the appeal, has dismissed the suit of the plaintiffs and
decreed the Counter-Claim of the defendants.
4. Vide judgment and decree dated 27.9.2000, learned trial Court had decreed the suit, filed by the present appellants and the counter-claim, filed by
the present respondents, was ordered to be dismissed.
5. For the sake of convenience, the parties, to the present lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the
learned trial Court.
6. Brief facts leading to filing the present appeal, before this Court, may be summed up, as under:
Plaintiffs Bhupinder Nath and Santosh Kumar had filed the suit for permanent prohibitory injunction, against the defendants, on the ground that they
were owners in possession of the land, bearing Khasra No. 54/4, 5, 7,9, 11, 55/12, 15, 19, 22, 24, 29, 32, 37, 39, 41, 43, 56/45 and 57/47, Khata
Khatauni No. 2/2 Kita 18, measuring 71 bigha 6 biswa, Khasra No. 13, 31, Khata Khatauni No. 3/3, Kita 2 measuring 1 bigha 14 biswa, situated in
Mauja Phagol, Pargana Haripur, Tehsil & District Solan, H.P. (hereinafter referred to as ‘the suit land’).
6.1 According to the plaintiffs, defendants have no right, title or interest over the suit land, however, they are trying to interfere in the suit land, by way
of cutting kher trees, situated over there. It has been pleaded by the plaintiffs that defendant No. 1 has cut 13 kher trees, value of which, has been
assessed as Rs. 1200/- per tree, and has also tried to interfere in the suit land, so as to cause loss to the plaintiffs and thereby to gain advantage. The
plaintiffs reserved the right to file separate suit for the damages/loss, caused on account of illegal felling of 13 kher trees, from khasra No. 57/47, out
of suit land. According to the plaintiffs, requests, made by the plaintiffs, fell on the deaf ears of the defendants, thus, the present suit has been filed,
seeking relief of permanent prohibitory injunction.
7. When, put to notice, the suit has been contested by the defendants by denying the stand, as taken by the plaintiffs, in the plaint. However, according
to them, except khasra No. 57/47, out of the suit land, defendants have no concern whatsoever with the suit land, whereas, the said khasra number is
in possession of defendants No. 1 to 6 and Smt. Shanti, widow of Lachhi Ram.
7.1. Elaborating their stand, the defendants have pleaded that defendants No. 1 to 6 are in possession of khasra No. 57/47, which was earlier
described as Khasra No.47 measuring 55.14 bighas and the plaintiffs, in connivance with the revenue officials, got incorporated their names, qua
khasra No. 47, having half share and remaining belonging to Shri Mast Ram defendant No. 1, Shri Narainoo, the predecessor of defendants No. 1 to 6
and Smt. Shanti widow of Lachhi Ram.
7.2 It is the further case of the defendants that the plaintiffs had initially purchased khasra number, other than the disputed one, except khasra No.
54/4, 11, 55/12 and 56/45, including khasra No. 57/47, which is stated to be shalmat deh land. According to the defendants, the plaintiffs got recorded
the shamlat rights to the extent of ½ share, instead of ¼ share, as, the other co-owners had not sold their rights in the shamlat deh land and the
plaintiffs could succeed only qua the rights to extent of the land purchased from the co-owners and the revenue entries got incorporated, vide mutation
No. 14, dated 14 Jeth (Samvat 1994). According to defendants, in the revenue records, the entries are wrongly coming in the names of the plaintiffs
and the attestation of mutation of the landed property in shamlat, which is in the name of the plaintiffs, is also stated to be illegal.
7.3 It is the further case of the defendants that Khasra No. 57/47, initially khasra No. 47, always remained in possession of the defendants and they
have been conferred with proprietary rights to the extent of ½ share of khasra No. 47, denoted as 47/1 and khasra No. 47/2 has wrongly been
shown in the mutation, which has now been changed to Khasra No. 57/47. The said land is stated to be in possession of the defendants since the time
immemorial.
7.4 The defendants had also filed the counter claim, averring that defendants No. 1 to 6, alongwith one Smt. Shanti, widow of Shri Lachi Ram, are
coming in possession of land property, comprising in khata khatauni No. 2/2, khasra No. 57/47, measuring 27.17 bighas, which has been continuing
since the time of predecessor-in-interest of defendants No. 2 to 6 and the same has wrongly been incorporated in the revenue records in the names of
Shri Bhupinder Kumar and Santosh Kumar. The entry is stated to be made in the revenue record, in connivance with the revenue officials, as such,
the said revenue record is stated to be illegal and without jurisdiction. Mutation dated 26.5.1976 is also stated to be null and void.
8. On the basis of above facts, the defendants have sought declaration accordingly.
9. The plaintiffs had filed the replication, as well as, reply to the counter claim, by denying the factual position, as mentioned in the written statement.
The counter claim is also stated to be not maintainable, as, according to the plaintiffs, the same is barred by limitation; that the Civil Court has no
jurisdiction to entertain and decide the counter claim; and the defendants are estopped from filing counter claim on account of their acts and conduct.
10. The factual position, as mentioned in the counter claim, has been denied.
11. As such, a prayer has been made to decree the suit, by dismissing the Counter Claim.
12. From the pleadings of the parties, the following issues were framed by the learned trial Court, on 29.3.1996:
1. Whether the plaintiffs are owner in possession of the suit land and entitled to the injunction, as prayed for? OPP
2. Whether the defendants are in possession of the suit land and revenue entries in favour of the plaintiffs are wrong, illegal and mutation dated 26.5.76 is also
null and void? OPD
3. Whether the defendant is entitled to counter claim, as prayed? OPD
4. Whether Court has no jurisdiction to decide the Counter Claim? OPP
5. Whether the defendants are estopped for counter claim? OPP
6. Whether Counter Claim is barred by limitation? OPP
7. Whether the Counter Claim is not maintainable? OPP
8. Relief.
13. Thereafter, parties to the lis were directed to adduce evidence. After closure of evidence, the learned trial Court heard the learned counsel
appearing for both the parties and decreed the suit of the plaintiffs and dismissed the counter claim, set up by the defendants.
14. Against the said judgment and decree, the defendants had filed Civil Appeal No. 67 of 2000, titled as, ‘Mast Ram & others versus Bhupinder
Nath & anr.’. The said appeal was allowed by the learned First Appellate Court, vide judgment and decree, dated 29.11.2001. While allowing the
appeal, the suit of the plaintiffs was ordered to be dismissed, whereas, the counter claim, set up by the defendants, was ordered to be allowed.
15. Feeling aggrieved from the said judgment and decree, the present appeal has been preferred, before this Court, by the plaintiffs.
16. The judgment and decree, passed by the learned First Appellate Court, has been assailed on the ground that the learned First Appellate Court has
reversed the well-reasoned judgment, passed by the learned trial Court, in a very mechanical manner, and without assigning any reason.
17. The findings of the learned First Appellate Court have further been assailed on the ground that the learned First Appellate Court has accepted the
appeal by granting the relief, which was beyond the scope of plaint itself, as, the defendants had never claimed to be absolute owners in possession of
the whole suit land. It has further been pleaded that the learned First Appellate Court has wrongly concluded that the respondents are owners in
possession of the entire suit land.
18. The findings of the learned First Appellate Court have further been assailed on the ground that the learned First Appellate Court has wrongly held
that the sale deed was in excess to the share in the Shamlat land.
19. On the basis of grounds of appeal, a prayer has been made to allow the appeal by setting aside the judgment and decree, passed by the learned
First Appellate Court.
20. The present appeal has been admitted by this Court, vide order dated 21.3.2002, on the following substantial questions of law:
“1. Whether Civil Court had no jurisdiction to go into the question involved in the counter claim?
2. Whether the judgment and decree of the learned first appellate Court is vitiated on account of misreading of pleadings, oral and documentary evidence?
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21. Thereafter, on 3.10.2023, the following additional substantial question of law was framed:
“Whether a single appeal was maintainable against the decreetal of the suit and dismissal of the counter claim?
22. Since, the additional substantial question of law, framed on 3.10.2023 goes to the root of the case, as such, the said substantial question of law is
required to be decided first.
23. Perusal of the record shows that vide judgment and decree, dated 27.9.2000, the learned trial Court had decided the Civil Suit, preferred by the
plaintiffs, alongwith the Counter Claim, set up by the defendants, in this case.
24. As per provisions of Order VIII Rule 6(A) to 6(G) of the CPC, a defendant, in a suit, may, set up, the counter-claim against the claim of the
plaintiff regarding any right or claim, in respect of a cause of action, accruing to the defendant, against the plaintiff, either before or after the filing of
the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence, has expired.
25. As per the provisions of Order VIII Rule 6(A) to 6(G) of the CPC, such counter-claim shall not exceed the pecuniary limits of the jurisdiction of
the court as the effect of the cross-suit and Counter Claim will be treated as the plaint, for which, the plaintiff has right to file written statement, and
when counter claim has been filed, the Court will pronounce the final judgment, not only in the suit filed by the plaintiff, but in the suit filed by the
defendant, i.e. the Counter claim.
26. It is no longer res-integra that the counter claim is the cross suit and dismissal of the counter claim is a decree and the same is appellable.
27. The scope and nature of the Counter Claim have elaborately been discussed by the Hon’ble Supreme Court in Jag Mohan Chawla & another
versus Dera Radha Swami Satsang & others, reported in (1996) 4 Supreme Court Cases 699. Relevant paragraph-5 of the judgment is reproduced as
under:
“5. The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether
counter-claim can be made on different cause of action? it is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter-
claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6-A(1) provides that a defendant
in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of
a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before
the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damage or not. A limitation put in entertaining the
counter-claim is as provided in the proviso to sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2)
amplified that such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the
original claim and on the counter- claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period
as may be fixed by the Court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the
plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala had come to consider the case of
suit and cross suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been
dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and
thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying
the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint.
They also sought a prayer to treat the counter- claim as a cross suit. The trial Court dismissed the suit and the counter-claim. On appeal, the learned Single Judge
accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the
respondents' plea in the written statement to be a counter- claim for settlement of their claim and defence in written statement as a cross suit. The counter-claim could
be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be
conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right on the defendant to set up
a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6A, the language is so
couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an
independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be
connected with the original cause of action or matter pleaded by the plaintiff. The words ""any right or claim in respect of a cause of action accruing with the
defendant"" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the
plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The
defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all
the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the
defendant to an independent suit, to avert multiplicity of the proceeding and needles protection, the legislature intended to try both the suit and the counter-claim in
the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect
of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action
adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment.
Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the
counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the
property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-
claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar v. State of Madhya Pradesh where a Bench of two Judges of this Court was to
consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was
maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.â€
28. Similar view has again been reiterated by a three judges Bench of Hon’ble Supreme Court in Satyender & others versus Saroj & others,
reported in 2022 Live Law (SC) 679. Relevant para-16 of the judgment is reproduced as under:
“16. The other finding of Second Appellate Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is, however, correct and is based on
right interpretation of Order VIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear that they had never raised any claim on Killa No. 6//18 or Killa No. 23.
The defendants in their written statement while denying the rights of the plaintiffs on the land of which particulars had been given by the plaintiffs, quite ingeniously
inserted the two Killa Nos.6//18 and 23, setting a counter-claim on these plots. The Trial Court and the First Appellate Court while dismissing the plaintiffs’ suit
had allowed this claim for without assigning any reasons. In fact, this counter claim which was raised by the defendant is barred under Order VIII, Rule 6A of the
CPC. Order VIII, Rule 6A reads as under:-
[6A. Counter-claim by defendant.â€"(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against
the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but
before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim
for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim
and on the counterclaim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints A counter claim can be set up only “against the claim of the
plaintiffsâ€. Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in
view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs. It is true that a counter claim can be made by the defendant, even on a separate or
independent cause of action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors.).
The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim
cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or
before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the present case the
counter claim was not against the plaintiffs. Moreover, as the plaintiffs had not claimed any right over the property and the Killa Nos. 6//8 and 23 are not even a part
of the suit property described in the plaint by the plaintiffs. Despite the same, such a claim has been allowed against the plaintiffs. In fact, we do not find on record
any reply submitted by the plaintiffs against the counter claim. To be fair, such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC.
Suffice it to state here that the counter claim set up by the defendants has been rightly rejected by the High Court.â€
29. The learned trial Court, in this case, had decreed the suit of the plaintiffs, as prayed for, and the counter claim, set up by the defendants, had been
dismissed.
30. While deciding issues No. 1 to 3, the learned trial Court had held that the plaintiffs have established their ownership and possession qua the suit
land, whereas, the plea, set up by the defendants, by way of counter claim, against the plaintiffs, is not substantiated on record. Meaning thereby, it has
not been held by the learned trial Court that the counter claim, filed by the defendants, is not maintainable. When, there were two decrees, one, by
virtue of which, the suit of the plaintiffs was decreed and another, by virtue of which, the counter claim was dismissed, in that eventuality, the
defendants were required to file two separate appeals.
31. In the appeal filed before the learned First Appellate Court, the following prayer has been made by the defendants:
“It is, therefore, prayed in view of above submissions, in the interest of justice, the appeal may kindly be accepted and the impugned judgment decree passed in
favour of the respondents/plaintiff in Civil Suit No. 2/1 of 1995, dated 02.01.1995 passed by Hon’ble Senior Sub Judge, Solan on dated 27.9.2000 may kindly be set
aside and correction of the suit of the respondents/plaintiff may kindly be ordered to be dismissed with cost through out.â€
32. In this factual background, the material question which arises for determination, before this Court, is whether the learned First Appellate Court can
interfere with the judgment and decree, passed by the learned trial Court in the absence of the separate appeal.
33. The Division Bench of this Court, in Ramesh Chand versus Om Raj, reported in 2022(2) Shim. L.C. 1145, has enumerated certain principles in this
regard. Relevant paragraph-42 of the judgment is reproduced as under:
“42. The principles deducible from the adore-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.â€
34. Learned counsel appearing for the defendants has made an futile attempt to carve out the exception by relying upon the decision of the Apex
Court in a case titled as, Ramnath Exports Private Limited versus Vinita Mehta & another, reported in (2022) 7 Supreme Court Cases 678.
35. With due respect to the law laid down, in the said case, the same is not applicable to the facts and circumstances of the present case, as, in
Ramnath’s case (supra), the application, seeking permission to file the single appeal, assailing the common judgment, was pending and the High
Court had decided the appeal, by virtue of which, two suits were decided by the learned trial Court, without deciding the said application.
36. Going to the facts and circumstances of the present case, admittedly, in this case, such prayer had not been made, before the learned First
Appellate Court. As such, non-filing of the separate appeal, against the judgment and decree, passed by the learned trial Court, attracts the principle of
res-judicata, and the learned First Appellate Court, cannot interfere with the findings of the learned trial Court, vide judgment and decree dated
27.9.2001, by virtue of which, suit of the plaintiffs had been dismissed, whereas, counter claim, set up by the defendants, had been decreed.
37. In such situation, the additional substantial question of law, framed on 3.10.2023, is accordingly decided, in affirmative, in favour of the appellants.
Although, other substantial questions of law have also been framed, by this Court, but, since the above-mentioned substantial question of law has been
decided, in affirmative, in favour of the appellants, as such, other substantial questions of law have become redundant.
38. Consequently, the present appeal is liable to be allowed by setting aside the judgment and decree, passed by the learned First Appellate Court, by
restoring the judgment and decree, passed by the learned trial Court.
39. Ordered accordingly.
40. Decree-sheet be prepared accordingly.
41. The pending application(s), if any, are also disposed of.
42. Record be sent down.
