Wednesday, 24 June 2020

Whether composite appeal against decree passed in suit and counter claim is maintainable?

 Now coming to the judgment of the Apex Court in Narhari and others' case (supra), the Apex Court in paragraph 5 has observed that 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 been drawn up. The observation of the Apex Court in Narahari's case therefore applies in all fours to the facts of the instant case wherein there was one trial, one finding and one decision as regards the property and therefore the Appellants were not required to file separate Appeals. In so far as the judgment of a learned Single Judge of the Kerala High Court in Pampara Philip's case is concerned, though the said judgment is not directly on the point as to whether one Appeal is maintainable, the Appellants can draw support from the said judgment in the light of the fact that the learned Single Judge of the Kerala High Court has held that if the claim in the counter claim is dismissed and the suit claim is allowed, then there is no warrant to file two Appeals but what is required to be done is that the valuation has to be composite i.e. the valuation of the suit and counter claim, and court fees have to be paid accordingly. In my view, the judgment lends support to the case of the Appellants inasmuch as in the instant case also the suit claim has been allowed and the counter claims have been dismissed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4658 of 2013

Decided On: 10.12.2014

 Shankar Masu Dokare  Vs.  Shobha Subhash Dokare

Hon'ble Judges/Coram:
R.M. Savant, J.




1. Rule, with the consent of the learned Counsel for the parties made returnable forthwith and heard.

2. The writ jurisdiction of this court is invoked against the order dated 23/4/2013 passed by the learned Ad hoc District Judge-2 Solapur by which order the Application (Exhibit 15) for amendment of the Appeal being Civil Appeal No. 325 of 2012 came to be allowed and resultantly, the Respondents herein were held entitled to amend the Appeal in terms of the amendment sought vide the said Application (Exhibit 15).

3. Shorn of unnecessary details, a few facts can be stated thus :-

The Petitioner herein is the original Plaintiff who had filed the suit in question being Special Civil Suit No. 110 of 2005 for a declaration that the Petitioner is the owner of the entire suit property, and for cancellation of the sale deed executed by the Defendant No. 2 i.e. the Respondent No. 1 herein who is his daughter in favour of the Defendant No. 4. i.e. the Respondent No. 2 herein. In the said suit counter claims came to be filed by both the Defendant No. 2 and the Defendant No. 4. In so far as the Defendant No. 2 is concerned, she claimed a declaration that she has got 1/4th share in the suit property, and in the alternative the suit property be partitioned. In so far as the Defendant No. 4 is concerned, she sought the relief of partition of the suit property pursuant to the sale deed executed by the Defendant No. 2 in her favour.

4. After going through the gamut of a trial, the suit in question came to be decreed by the Trial Court in favour of the Plaintiff by the judgment and order dated 31/3/2007 passed by the learned Civil Judge, Senior Division, Solapur. However, in so far as the counter claims of the Defendant No. 2 and the Defendant No. 4 are concerned, their counter claims came to be dismissed.

5. Aggrieved by the decreeing of the suit by the judgment and order dated 31/3/2007 the Defendant Nos.2 and 4 i.e. the Respondent Nos.1 and 2 herein filed an Appeal in this Court being First Appeal No. 2155 of 2007 challenging the said decree. In the context of the issue which arises in the present Petition, it is required to be noted that in Ground (B) of the memo of the First Appeal, the Respondents/Appellants have raised a challenge to the dismissal of the counter claims. There are other grounds in the Memo of Appeal which question the findings recorded on the issues which arise on account of the counter claims and which are concerning the Defendant Nos.2 and 4. It is not necessary to refer to the said grounds as the Ground (B) can be said to be an over imposing ground questioning the dismissal of the counter claims.

6. At this stage it is required to be noted that the adjudication is one and the finding recorded is in respect of the suit property by which the Trial Court has held that the title vests with the Plaintiff. After the pecuniary jurisdiction of the District Court was enhanced pursuant to the amendment to the Bombay Civil Courts Act, the said First Appeal No. 2155 of 2007 was transferred to the District Court, Solapur. After the transfer of the said First Appeal to the District Court, Solapur, the Respondents/Appellants moved the instant Application (Exhibit 15) for amendment of the Appeal memo to add paragraph (iv) after paragraph (iii). In the said paragraph (iv) by way of prayer clause (a) the Appellants have prayed that the Appeal be allowed and by way of prayer clause (b) the Appellants have prayed for setting aside the judgment and order dated 31/3/2007, the suit be dismissed and the counter claims of the Defendant Nos.2 and the Defendant No. 4 may be allowed with costs throughout.

7. The said Application (Exhibit 15) was opposed to on behalf of the original Plaintiff i.e. the Petitioner herein by filing a Reply (Exhibit 16). In the said reply, the Plaintiff objected to the amendment sought on the ground that by way of amendment three Appeals were sought to be converted into one; that the issue of limitation and the issue of jurisdiction also arise in view of the amendment.

8. The Trial Court considered the said Application (Exhibit 15) and has by the impugned order dated 23/4/2013 allowed the same. Whilst allowing the said application, the Trial Court held that since there was one trial, one finding and one decision in respect of the suit and the counter claims, there need not be two Appeals even though the decrees may have been drawn up. The Trial Court relied upon the judgment of the Apex Court reported in MANU/SC/0047/1950 : AIR 1950 SC 419 in the matter of Narhari and others v/s. Shankar and others. The Trial Court also placed reliance on the judgment of a learned Single Judge of Kerala High Court reported in MANU/KE/0592/2006 : AIR 2007 Kerala 69 in the matter of Pampara Philip v/s. Koorithottiyil Kinhimohammed wherein the learned Single Judge has held that where a counter claim filed by the Defendants is dismissed and the plaint claim is allowed, the Defendants need not file separate Appeals but a single Appeal challenging both the findings is maintainable, and that the valuation of Appeal would be on the basis of the combination of suits plus counter claim and the court fees would have to be paid accordingly. The Lower Appellate Court held that since the Appellants have challenged the decree passed in the suit as well as the dismissal of the counter claims, they are entitled to maintain one Appeal. As indicated above, it is the said order dated 23/04/2013 which is taken exception to by way of the above Appeal.

9. Heard the learned counsel for the parties. The learned counsel for the Petitioner Shri Surel Shah would reiterate the case of the Petitioner before the Trial and would submit that since there is a decree in the suit and the decree in the counter claims, the Appellants i.e. the Respondents herein were required to file two Appeals. The learned counsel would contend that the scope of the suit and the scope of the counter claim was different, there was no one finding recorded and hence the Respondents were required to file two Appeals. The learned counsel sought to place reliance on Order XLI Rule 1 of the Code of Civil Procedure which postulates filing of one copy of the judgment if the suits are tried together and two decrees are passed. The learned counsel also placed reliance on Order XX Rule 19 of the Code of Civil Procedure where it is posited that the decree passed in a suit in which a counter claim is filed shall be subject to the same provisions in respect of an Appeal. This provision the learned counsel for the Petitioner wants to invoke so as to extend the proposition to the factum of filing of a separate Appeal in respect of the decree passed in the counter claim.

10. Per contra, the learned counsel for the Respondents Shri Amit Borkar would support the impugned order. The learned counsel would draw my attention to the grounds of Appeal in the Appeal as originally filed wherein there is a specific ground taken as regards rejection of the counter claims as also as regards the findings recorded by the Trial Court in respect of the counter claims of the Defendant No. 2 and the Defendant No. 4. The learned counsel in support of his submission that there is no warrant to file separate Appeals sought to place reliance on the judgment of the Apex Court in the Narhari and others' (supra) as also the judgment of a learned Single Judge of the Kerala High Court in Pampara Philip's case (supra).

11. Having heard the learned counsel for the parties, I have considered the rival contentions. The question that is posed is whether the Appellants were required to file separate Appeals in respect of the decree passed in the suit and in respect of the decree passed in the counter claims. It is required to be noted that the controversy in the suit revolves around the suit property which the Plaintiff claims to be his exclusive property. In view thereof, the Plaintiff i.e the Petitioner herein had challenged the sale deed executed by his daughter i.e. the Defendant No. 2 in favour of the Defendant No. 4 on the ground that the Defendant No. 2 did not have any right in the property so as to execute the sale deed in favour of the Defendant No. 4. The Defendant No. 2 in her counter claim had sought a declaration that she has 1/4th share in the property and in the alternative had prayed for partition of her said 1/4th share in the said suit property. The Defendant No. 4 who is the purchaser from the Defendant No. 2 also sought partition of the 1/4th share which she has purchased from the Defendant No. 2. Hence the controversy was revolving around the suit property and it was not a case where the reliefs claimed by the Plaintiff and the reliefs claimed by the Defendants were different in their content vis-a-vis the suit property. It is an undisputed position that the counter claims were tried along with the suit and a common judgment was rendered by the Trial Court i.e. allowing the suit and dismissing the counter claims filed by the Defendant No. 2 and the Defendant No. 4. It is further required to be noted that in the Appeal as original filed the challenge has been raised to the decree by incorporating a specific ground being Ground (B) wherein the dismissal of the counter claims is questioned. There are also other grounds in the Appeal memo wherein the findings relating to the counter claims are challenged. Hence in the Appeal as originally filed, it can be said that the same was filed against both the decree passed in the suit as well as the counter claims. Hence it is not as if for the first time that by the amendment a challenge to the dismissal of counter claim is raised by the Appellants. The amendment sought as can be seen was as and by way of incorporating prayer clauses (a) and (b) in the Appeal Memo i.e. the Appeal be allowed and dismissal of the counter claim be set aside. Such is not the practice followed in this Court as the Appeals filed in this Court do not contain any prayer except the grounds on which the decree is challenged. May be after the Appeal was transferred to the District Court out of abundant caution the advocate for the Appellants who was appearing for them in the District Court sought to incorporate the said two prayers which appear in paragraph (vii) which is now sought to be incorporated by way of the amendment application. However, the application for inclusion of the said prayer cannot be construed in a manner to suggest that originally there was no challenge to the decree passed in the counter claims as the challenge to the dismissal of the counter claims is ex-facie clear from the reading of Ground (B) of the grounds in the Memo of Appeal as originally filed. Hence in the instant case there is no question of issue of limitation or issue of jurisdiction, res-judicata arising as the challenge in the Appeal as originally filed was composite i.e. both to the decreeing of the suit and the dismissal of the counter claims.

12. Now coming to the judgment of the Apex Court in Narhari and others' case (supra), the Apex Court in paragraph 5 has observed that 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 been drawn up. The observation of the Apex Court in Narahari's case therefore applies in all fours to the facts of the instant case wherein there was one trial, one finding and one decision as regards the property and therefore the Appellants were not required to file separate Appeals. In so far as the judgment of a learned Single Judge of the Kerala High Court in Pampara Philip's case is concerned, though the said judgment is not directly on the point as to whether one Appeal is maintainable, the Appellants can draw support from the said judgment in the light of the fact that the learned Single Judge of the Kerala High Court has held that if the claim in the counter claim is dismissed and the suit claim is allowed, then there is no warrant to file two Appeals but what is required to be done is that the valuation has to be composite i.e. the valuation of the suit and counter claim, and court fees have to be paid accordingly. In my view, the judgment lends support to the case of the Appellants inasmuch as in the instant case also the suit claim has been allowed and the counter claims have been dismissed.

13. In so far as the provision of Order XLI Rule 1 of the Code of Civil Procedure is concerned, the same can be said to be in the nature of enabling the provision which obviates the need to file separate copies of the judgment and decree. In so far as the provision of Order XX Rule 19 of the Code of Civil Procedure is concerned, what is posited therein cannot be extended so as to contend that there is a requirement of filing of two Appeals. There can be no dispute about the fact that the decree in the counter claim has also to be challenged within limitation. In the instant case as indicated above the Appeal memo as originally filed contained common grounds of challenge for both the decree in the suit as well as a counter claims. Hence as rightly observed by the Trial Court no question of limitation arises. In the facts of the present case where there was one trial, one finding, filing of one Appeal cannot be said to be in contravention of any of the provisions of the Code of Civil Procedure. This is not a case where the reliefs sought by way of counter claims had nothing to do with the subject matter of the suit or that the counter claims were directed against some parties who are not parties to the suit or against whom the Plaintiffs were not claiming reliefs. The order passed by the Lower Appellate Court therefore cannot be said to suffer from any error of jurisdiction or any other infirmity or illegality for this Court to interfere in its writ jurisdiction. The above Writ Petition is accordingly dismissed. Rule discharged with parties to bear their respective costs of the petition.

14. In the light of the fact that the Petitioner herein i.e. the original Plaintiff is 83 years of age, the hearing of the Appeal which is of the year 2007 is expedited and is directed to be disposed of latest by 31st March 2015.


Print Page

No comments:

Post a comment