Civil Procedure Code, 1908 — Order VIII Rule 6-A — Suit and counter-claim — Common judgment — Separate decrees — Single appeal — Maintainability.
Held, “there is only one original suit, counterclaim arises from out of the suit and the suit and the counterclaim were decided by the trial Court by way of single judgment on merits.” The trial Court “by passing a single decree and judgment, decreed the suit filed by the plaintiff and dismissed the counterclaim filed by defendant No. 2.” The appellant “filed A.S.No. 14 of 2016 before the first appellate Court by paying Court fees for the suit claim and also counterclaim.” Therefore, “a single appeal is maintainable before the first appellate Court.”
(Paras 20, 27, 34)
HEADNOTE – II
Civil Procedure Code, 1908 — Order VIII Rule 6-A(2) — Counter-claim — Nature of decree — Composite adjudication.
Held, “though by legal fiction, it is a cross suit, however, in substance, it is a part of the same suit filed by the plaintiff.” “Order 8 Rule 6-A (2) enables the Court to pronounce a final judgment in the same suit both on the original claim and on the counterclaim.” “Thus, when the composite decree is passed while deciding both suit and counterclaim, there is no use of filing two separate appeals.”
(Paras 33, 34)
HEADNOTE – III
Civil Procedure Code, 1908 — Order XLI Rule 31 — First appeal — Common judgment — Failure to consider counter-claim — Effect.
Held, “the first appellate Court has not even framed required points for determination in the first appeal.” The first appellate Court “has not touched the relief claimed in counterclaim by defendant No. 2.” “The first appellate Court is required to address itself to all the issues and decide the case by giving reasons.” Failure to do so renders the decree and judgment “not legally sustainable.”
(Paras 21, 24, 36)
HEADNOTE – IV
Civil Procedure Code, 1908 — Ss. 100, Order XLI Rule 31 — Second appeal — Remand.
Held, “the decree and judgment passed by the first appellate Court is unsustainable and liable to be set aside.” “Interest of justice requires that the matter has to be remanded back to the first appellate Court” to frame relevant points and dispose of the appeal on merits.
(Paras 36–38)
ANALYSIS OF FACTS
The litigation arises out of O.S.No.171 of 2010, wherein the plaintiff sought declaration of title and recovery of possession of the entire plaint schedule property.
Defendant No.2, while filing his written statement, also filed a counter-claim seeking:
declaration of title over the northern portion of the schedule property, and
consequential relief of injunction.
The trial Court:
framed issues both on the suit claim and the counter-claim,
recorded common evidence,
and disposed of both by a single judgment dated 30-11-2015,
decreeing the suit and dismissing the counter-claim.
Against the said judgment and decree, defendant No.2 filed A.S.No.14 of 2016, paying court-fee both on the suit claim and on the counter-claim, and specifically raising grounds challenging the dismissal of the counter-claim.
The first appellate Court, however:
framed only one general point for determination,
did not frame points relating to the counter-claim,
did not advert to the dismissal of the counter-claim, and
dismissed the appeal by confirming the decree of the trial Court.
The second appeal was admitted on substantial questions of law relating to:
non-consideration of the counter-claim, and
non-compliance with Order XLI Rule 31 CPC.
ANALYSIS OF LAW
A. Scope of Second Appeal
The High Court reiterated that under Section 100 CPC, interference is permissible where findings are vitiated due to:
violation of mandatory provisions of law, or
non-consideration of material issues.
(Paras 16–18)
B. Nature of Counter-claim and Decree
The Court noted that:
“there is only one original suit,”
“counterclaim arises from out of the suit,” and
“the suit and the counterclaim were decided by the trial Court by way of single judgment on merits.”
(Paras 20, 27)
Though a counter-claim is treated as a cross-suit by legal fiction, the Court emphasized that:
“in substance, it is a part of the same suit,” and
Order VIII Rule 6-A(2) enables a final judgment in the same suit both on the original claim and on the counter-claim.
(Paras 33–34)
The Court expressly rejected the contention that separate appeals were mandatory, holding that:
when a single judgment decides both claims, and
the appellant has paid court-fee for both,
“a single appeal is maintainable.”
(Para 34)
C. Duty of the First Appellate Court
The High Court held that the first appellate Court is the final Court of facts and must:
frame proper points for determination,
consider all issues decided by the trial Court, and
record findings with reasons.
(Paras 21–26)
Reliance was placed on Order XLI Rule 31 CPC, and binding precedents, to reiterate that:
mere confirmation of the trial Court judgment,
without framing points and addressing the counter-claim,
amounts to non-application of mind.
The Court specifically found that:
the first appellate Court “has not touched the relief claimed in counterclaim,” and
the appeal was decided “in an unsatisfactory manner.”
(Paras 21, 24, 36)
D. Consequence of Non-Compliance
Because the first appellate Court:
failed to comply with Order XLI Rule 31 CPC, and
failed to adjudicate the counter-claim which was properly before it,
the appellate judgment was held to be:
“not legally sustainable,” and
liable to be set aside with remand.
(Paras 36–38)
RATIO DECIDENDI
Where a suit and counter-claim are decided by a single common judgment, and the aggrieved party files one appeal paying court-fee both on the suit claim and the counter-claim, a single appeal is maintainable notwithstanding the drawing of separate decrees.
The first appellate Court, being the final Court of facts, is duty bound under Order XLI Rule 31 CPC to frame specific points for determination and record independent findings on both the suit claim and the counter-claim.
Failure of the first appellate Court to consider the dismissal of the counter-claim and to frame appropriate points for determination renders the appellate judgment unsustainable in law and warrants remand.
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