Tuesday, 21 April 2020

Whether defendant can question dismissal of counter claim by filing cross objection?

 A counter claim raised in a suit has all the incidents of a plaint and even in the discontinuance of the suit by the plaintiff in which such claim was raised, the counter claim has to be proceeded with. In answer to the counter claim, the plaintiff in the suit has to file a written statement and the court has to pronounce a judgment after trial on the counter claim. O. VIII R. 6 (a) to (g) of the Code clearly spell out that an adjudication of the counter claim as if it were a suit claim and pronouncement of the judgment leading to a decree is contemplated. The counter claim, therefore, for all intends and purposes is a suit by a party figuring as a defendant in another suit filed by the plaintiff and so much so, even a dismissal of the counter claim in the judgment rendered by the court, after trial, that it is not maintainable, amounts to dismissal of a suit, as if such a suit had been filed by the defendant as against the plaintiff in whose suit a counter claim was raised were the plaintiff. If that be so, can such a defendant, after dismissal of his counter claim raised in the suit, impeach the correctness of such dismissal by way of cross objections in the appeal preferred by the plaintiffs against the dismissal of their suit. No doubt, a cross objection is entertainable in such appeal only if the appellant/plaintiff is interested in the sense that it has got a material effect on the decree applied for by him in reversal of the dismissal of his suit by the trial court. The appellants/plaintiffs are in no way interested in the reconsideration of the decree passed by the court negativing the counter claim raised by the defendant in his suit and at any rate, such consideration cannot be sought for by the defendant in the appeal preferred by the plaintiff against the decree rendered in his suit to the extent he was aggrieved. As the judgment rendered in the counter claim give rise to a distinct decree in favour or against the defendant who had raised such a claim in a suit filed by another any challenge to such decree has to be raised by way of an independent appeal as provided by the Code by the defendant and not by way of cross objections, in the appeal preferred by the plaintiff against the dismissal of his suit. The counter claim of the defendant in fact was a cross suit, adjudicated with the suit filed by the plaintiff. The decree and judgment passed in that, cross suit arising from the counter claim of the defendant, no doubt, has to be challenged by the appellant, if she is aggrieved preferring an appeal and she has no right to question its correctness by way of cross objections in the appeal preferred by me plaintiff confined against the dismissal of his suit. So much so, the cross objections filed by the above common appellant, as against the dismissal of her counter claim in A.S. No. 42/02, which was preferred by the appellants therein against dismissal of their suit O.S. No. 118/96, was not at all maintainable under law, and it should have received an outright rejection.

IN THE HIGH COURT OF KERALA

R.S.A. No. 666 of 2007

Decided On: 12.10.2010

 Thomas Vs.  Sudha

Hon'ble Judges/Coram:
S.S. Satheesachandran, J.

Citation: 2011(1) Civil court cases 314 Kerala



1. These appeals arise from a common judgment rendered in three appeals by the Additional District Judge, Thodupuzha, which in turn, arose from the common judgment in three suits rendered by the learned Sub Judge, Kattappana.

2. Three suits, O.S. No. 118 of 1996, O.S. No. 129 of 2001 and O.S. No. 130 of 2001, in which, common questions of fact and law arose for adjudication, were jointly tried by the learned Sub Judge, Kattappana. O.S. No. 118 of 1996 was a suit for declaration of title and injunction. The plaintiffs in that suit are the appellants in R.S.A. No. 666 of 2007. They have preferred the above appeal challenging the dismissal of their suit O.S. No. 118 of 1996 after it being confirmed by the lower appellate court dismissing their appeal, A.S. No. 2 of 2002, by the learned Additional District Judge, Thodupuzha. These appellants have filed another suit as O.S. No. 130 of 2001 in respect of the very same subject matter covered by O.S. No. 118 of 1996, in which a decree of injunction was applied for against the common 1st defendant but, with two others as co-defendants. The common 1st defendant in the above two suits O.S. No. 118 of 1996 and O.S. No. 130 of 2001 had filed the other suit O.S. No. 129 of 2001 in which, the plaintiffs in the above referred two suits and their vendors were the defendants. The plaintiff in the above suit had claimed the identical relief canvassed in O.S. No. 130 of 2001, a decree of injunction, and the subject matter of both the suits were the same.

3. In O.S. No. 118 of 1996 the two defendants therein filed separate written statements, but the 1st defendant, who was the plaintiff in the connected suit, O.S. No. 129 of 2001 and the 1st defendant in the other suit, O.S. No. 130 of 2001, in her written statement over and above disputing the decree for injunction claimed by the plaintiff raised a counter claim setting forth her title and possession over the property described in the written statement seeking declaration and possession over the same and for removal of a shed from that property alleged to have been unauthorisedly put up by the plaintiffs in the above suit. To that counter claim, the plaintiff in the suit had filed a written statement disputing and traversing the claim set forth by the 1st defendant and her entitlement for the decree canvassed for.

4. In brief, the case of the plaintiffs in O.S. No. 118 of 1996 was that they have obtained title and possession over A, B and C schedule properties under three separate sale deeds executed by one Ramalakshmiammal, who got right over the property by a sale deed from two persons namely, Annamala Chettiyar and Subramanya Chettiyar. The 1st defendant is the owner of the eastern property and the 2nd defendant the owner of the western property and both of them are making attempts to trespass into the plaint schedule properties was the case set up seeking declaration of title and possession of the plaintiffs and for injunction against the defendants in respect of the suit properties. The contention of the 1st defendant was that neither the plaintiffs or their predecessors got any right over the property under the sale deeds taken by them. Her case was after she obtained title and possession over 11.03 acres of land situate on the extreme east of the plaint survey number under two gift deeds executed at different points of time by her father and grand father, the 2nd defendant trespassed upon a portion of such property having an extent of 4.38 Acres. This defendant set up a counter claim for title, possession and injunction over 'Y' schedule in her written statement and sought for removal of shed from that property. To the counter claim set up by the 1st defendant the plaintiff in O.S. No. 118/96 filed a written statement reiterating the case canvassed in his plaint and disputing whatever right claimed by the 1st defendant over the properties scheduled in her written statement.

5. The two suits O.S. Nos. 129/01 and 130/01 as seen from the judgment of the Trial Court were re-numbered as such, after being transferred to the Sub Court, Kattappana from the Munsiff s Court, Devikulam where both the suits had been instituted by the respective plaintiffs therein. After the above suits were transferred and re-numbered on the file of the Sub Court, Kattappana, those suits were tried jointly with O.S. No. 118/96 instituted before that court, treating it as the main case, wherein the parties let in evidence. On the side of the plaintiffs Pws.1 and 2 and A1 to A34 were exhibited and for the contesting 1st defendant Dws.1 and 2 were examined and B1 to B24 were exhibited. Two reports and plan prepared by an advocate commissioner after measuring out the suit properties were also exhibited as C1, C2 and C2(a) in evidence. Strangely enough, after having such a joint trial of the three suits, a procedure unheard of and not at all permitted by rules was adopted by the trial court as could be seen from the judgment, by which the learned Sub Judge held that since all the three suits in which distinct reliefs canvassed by the parties involved identical questions for adjudication no decision on merits is called for in O.S. Nos. 129 and 130 of 2001. The counter claim raised in O.S. No. 118/96 by the 1st defendant, which case was treated as the main case, in which evidence was let in, according to the learned Munsiff, 'took care of the relief canvassed' by the 1st defendant in her suit O.S. No. 129/01 and so far as the case of the plaintiff in O.S. No. 129/01, it was observed that his claim raised in O.S. No. 130/01 is also 'covered by the former suit'. Expressing such views, the learned Sub Judge observed that O.S. Nos. 129 and 130/01 are to be dismissed, but, without prejudice to the rights of the parties to raise their respective contentions in O.S. No. 118/96. The learned Sub Judge had given expression, as above, not at any stage before the completion of the trial of the case, but in the common judgment rendered in the three cases jointly tried. The learned Sub Judge, it is seen, thereafter proceeded to consider O.S. No. 118/96, and the counter claim raised therein, with reference to the issues cast in that suit. After consideration of such issues with reference to the pleadings and also the materials tendered in the joint trial of the three cases, as indicated above, a common judgment was rendered dismissing the above suit and the counterclaim, and also the other two suits, O.S. Nos. 129 and 130 of 2001 stating that the dismissal of those two suits was subject to the observations indicated earlier.

6. The plaintiffs in O.S. No. 118/96 preferred an appeal against the dismissal of their suit as A.S. No. 42/02 before the Additional District Court, Thodupuzha. The above parties, who were the plaintiffs in O.S. No. 130/01 also, preferred another appeal against the dismissal of the above mentioned suit as A.S. No. 36/02 before the same court. The plaintiff in O.S. No. 129/01, who was the 1st defendant in O.S. No. 118/96 preferred an appeal against the dismissal of her suit as A.S. No. 82/02 before the same court. In the appeal A.S. No. 42/02 arising from O.S. No. 118/96, the first defendant therein, the appellant in A.S. No. 82/02, preferred cross objections against the dismissal of her counter claim raised in the suit. The lower appellate court, after considering all the three appeals, and also the cross-objections in A.S. No. 42/02 raised by the 1 respondent therein rendered a common judgment dismissing all the appeals and the cross-objections.

7. The plaintiffs in O.S. No. 118/96, on the dismissal of their suit, and later, the appeal, A.S. No. 42/02 impeach the concurrent decision rendered by both the courts below in R.S.A. No. 666/06. They have not preferred any appeal against the decision rendered under the common judgment by the lower appellate court in A.S. No. 36/02 which was filed against the dismissal of their suit O.S. No. 130/01. When the entertainability of this appeal R.S.A. No. 666/07 came up for consideration, it was practically conceded by the counsel for the appellants that non-filing of an appeal questioning the dismissal of A.S. No. 36/02 impeaching the dismissal of the suit O.S. No. 129/01 would constitute res judicata from having any further probe on the correctness of the dismissal of their suit O.S. No. 118/96. When the appellants in R.S.A. No. 666/07 have filed two suits, one for declaration of title and possession and the other for injunction in respect of the very same property and those suits have been jointly tried with another suit instituted by the common 1st defendant in their suits and when those suits have been disposed of after a full fledged trial under a common judgment, whatever be the legality, propriety and correctness or observations made by the trial court that one of the suits alone required to be disposed of on merits with reference to the issues cast therein and the other two suits deserve to be dismissed without prejudice to the right of the parties to raise their contentions in the other suit decided on its issues, as the questions involved for adjudication in the three suits are identical, any party in the suits aggrieved by the decision rendered has no other go but to challenge it before the next forum as provided by law. Rightly and correctly the plaintiffs in O.S. No. 130/01, the appellants in R.S.A. No. 666/07 have filed an appeal against the dismissal of that suit as A.S. No. 36/02 before the lower appellate court. That appeal dismissed under the common judgment rendered in the three appeals by the lower appellate court, with no further challenge therefrom would debar the appellants from impeaching the dismissal of A.S. No. 42/02 arising from O.S. No. 118/96, that alone, under the appeal R.S.A. No. 666/07. Since no appeal has been preferred from A.S. No. 36/02 by the appellants, and as the decision thereof has become final, and as it would constitute res judicata, the appeal R.S.A. No. 666/07 challenging the dismissal of A.S. No. 42/02 is only to be dismissed as not maintainable.

8. So far as the other two appeals also, R.S.A. No. 688/07 and 908/08 both preferred by the same appellant as against the adverse decisions rendered against her under the suits jointly tried and also later in appeals commonly disposed, as adverted to earlier, the entertainability of such appeals with reference to the bar of res judicata require to be considered. The common appellant in the above two appeals was the plaintiff in O.S. No. 130/01, which was jointly tried with two other suits ultimately resulting in the dismissal of all the suits. As against the decision rendered in O.S. No. 130/01, under the above common judgment she has not preferred any appeal. The learned Counsel appearing for the above common appellant banking upon the observations of the trial judge argued that there was no decision as such in O.S. No. 130/01 and its dismissal was subject to the reservation made allowing the parties in that suit to raise their respective pleas in O.S. No. 118/96 and as such the non-filing of an appeal from the dismissal of an appeal in O.S. No. 130/01 by the plaintiff therein was of no consequence. I do not agree. Whatever be the observations made by the learned trial judge, the nature of dismissal of O.S. No. 130/01 which admittedly was jointly tried with the other two suits, clearly indicate that the dismissal was with the reservation that as the issues are identical the parties can raise their contentions in O.S. No. 118/96, and when O.S. No. 118/96 was dismissed with the counter claim raised by the appellant also negatived, it was a case of dismissal of O.S. No. 130/01 on its merits by the trial court. May be the argument of the counsel could have been given some consideration had there been no adjudication of the counter claim of the appellant in O.S. No. 118 of 96 leading to dismissal of her suit in O.S. No. 130/01 as well. The merit of the case of her counter claim in effect covered her claim for injunction in O.S. No. 130/01, and such being the position, the dismissal of the suit O.S. No. 130/01 with the rejection of the counter claim in O.S. No. 118/96 spelt out that an adverse decision was rendered by the dismissal of her suit which, if not challenged, would seal such adverse decision with finality. So much so, the non-filing of an appeal from the decision in O.S. No. 130/01 by the above common appellant, who was the plaintiff in that suit in fact was fatal in entertaining her appeal, A.S. No. 82/02 even before the lower appellate court. However, without looking into the entertainability of the appeal, the lower appellate court has considered and dismissed that appeal on merits with the other two appeals under the common judgment. Where the above appeal should have been found not entertainable by the lower appellate court, the disposal of it on merit will not make any change of situation enuring to the benefit of the above common appellant.

9. On the facts and circumstances presented in the case, it is seen, both the appeals R.S.A. No. 688/07 and 908/08 preferred by the above common appellant are not entertainable under law. The common appellant, who was the 1st defendant in O.S. No. 118/96 had raised a counter claim in that suit and it was dismissed under the common judgment by me trial court. She did not file any appeal from the dismissal of her counter claim. When the plaintiffs filed an appeal from the dismissal of their suit, O.S. No. 118/96 the above common appellant, first defendant in that suit filed cross objections to that appeal and challenged the dismissal of her counter claim. The lower appellate court had dismissed such cross-objections as well and as against that dismissal, she has now preferred R.S.A. No. 908/08. The first and foremost question emerging for consideration is whether she could have filed a cross-objections under O. LXI R. 22 of the Code of Civil Procedure against the dismissal of her counter claim raised in the suit in the appeal preferred by the plaintiffs against the dismissal of their suit. A counter claim raised in a suit has all the incidents of a plaint and even in the discontinuance of the suit by the plaintiff in which such claim was raised, the counter claim has to be proceeded with. In answer to the counter claim, the plaintiff in the suit has to file a written statement and the court has to pronounce a judgment after trial on the counter claim. O. VIII R. 6 (a) to (g) of the Code clearly spell out that an adjudication of the counter claim as if it were a suit claim and pronouncement of the judgment leading to a decree is contemplated. The counter claim, therefore, for all intends and purposes is a suit by a party figuring as a defendant in another suit filed by the plaintiff and so much so, even a dismissal of the counter claim in the judgment rendered by the court, after trial, that it is not maintainable, amounts to dismissal of a suit, as if such a suit had been filed by the defendant as against the plaintiff in whose suit a counter claim was raised were the plaintiff. If that be so, can such a defendant, after dismissal of his counter claim raised in the suit, impeach the correctness of such dismissal by way of cross objections in the appeal preferred by the plaintiffs against the dismissal of their suit. No doubt, a cross objection is entertainable in such appeal only if the appellant/plaintiff is interested in the sense that it has got a material effect on the decree applied for by him in reversal of the dismissal of his suit by the trial court. The appellants/plaintiffs are in no way interested in the reconsideration of the decree passed by the court negativing the counter claim raised by the defendant in his suit and at any rate, such consideration cannot be sought for by the defendant in the appeal preferred by the plaintiff against the decree rendered in his suit to the extent he was aggrieved. As the judgment rendered in the counter claim give rise to a distinct decree in favour or against the defendant who had raised such a claim in a suit filed by another any challenge to such decree has to be raised by way of an independent appeal as provided by the Code by the defendant and not by way of cross objections, in the appeal preferred by the plaintiff against the dismissal of his suit. The counter claim of the defendant in fact was a cross suit, adjudicated with the suit filed by the plaintiff. The decree and judgment passed in that, cross suit arising from the counter claim of the defendant, no doubt, has to be challenged by the appellant, if she is aggrieved preferring an appeal and she has no right to question its correctness by way of cross objections in the appeal preferred by me plaintiff confined against the dismissal of his suit. So much so, the cross objections filed by the above common appellant, as against the dismissal of her counter claim in A.S. No. 42/02, which was preferred by the appellants therein against dismissal of their suit O.S. No. 118/96, was not at all maintainable under law, and it should have received an outright rejection. "That cross objection was considered by the lower appellate court with the other two appeals and disposed of under the common judgment makes no difference where it is noticed that dismissal of the counter claim which, as already stated, is a decree, has not been challenged by way of an appeal as provided by the Code. It is also noticed that R.S.A. No. 908/08 impeaching the dismissal of the cross objections raised in A.S. No. 42/02 had been filed long after the presentation of R.S.A. No. 688/07 preferred against the dismissal of O.S. No. 129/01 and after condonation of delay it has come up for consideration with the above mentioned appeal. Though delay has been condoned, as the very foundation of the appeal preferred is shown to be unstable as no cross objection is maintainable against the decree arising from the dismissal of a counterclaim in a suit, it goes without saying that R.S.A. No. 908/08 cannot at all be entertained under law.

10. The learned Counsel for the appellant pointed out that a sum of Rs. 5,913/- had been paid as court fee in the memorandum of appeal on the premise that the appeal as against the dismissal of a cross objection filed in the appeal preferred by the plaintiff against the dismissal of his suit could be challenged by way of an appeal. Since the appeal R.S.A. No. 908/08 is found not entertainable as the decree dismissing a counter claim in the circumstances indicated cannot be challenged by way of cross objections, naturally, that appeal preferred from the dismissal of the cross-objections is liable to be rejected as not entertainable. As the appeal has to be rejected, the appellant is allowed to have refund of the court fee paid in that appeal.

In view of what has been stated above, R.S.A. Nos. 666 and 688 of 2007 are dismissed and R.S.A. No. 908/08 is rejected as not maintainable. Refund of the court fee paid on R.S.A. No. 908/08 is allowed permitting the counsel for the appellant to collect the certificate of refund as per the Rules.




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