Back
2022 Supreme(HP) 176
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Mohammad Rafiq, Jyotsna Rewal Dua, JJ.
Shri Ramesh Chand Son Of Shri Kishan Chand - Appellant
Vs.
Om Raj, Son Of Shri Harbans - Respondent
Regular Second Appeal No.57, 515, 381 of 2017, RSA No.237 of 2019
Decided On : 17-05-2022
For the Appellant :Mr. B.M. Chauhan, Senior Advocate With Mr.M.S. Katoch, Advocate
For the Respondent:Mr.Sanjeev Kuthiala, Senior Advocate With Ms.Anaida Kuthiala & Ms.Amita Chandel, Advocates
Point of Law : Order 41 Rule 1 of CPC provides that every appeal shall be preferred in form of a memorandum signed by appellant or his pleader and presented to Court or to such officer as it appoints in this behalf.
Headnote:
Code of Civil Procedure, 1908 - Section 2(2), 2(9), 11, 96, 100, 115 – Order 2 Rule 2 – Order 8 Rule 1(A), 6-A , 6A (2), 6A (3) & 6A (4) - Order 20 Rule 19 (1) - Order 41 Rule 1 - Constitution of India, 1950 - Article 227, 374(4) - Limitation Act, 1963 - Section 3(2)(b) – Second Appeal - Principles of res judicata - Suit for permanent prohibitory injunction - Whether in original claim or counter claim, will bind parties - whether same set of reasons and same set of findings justify both decrees - Order 41 Rule 1 of CPC provides that every appeal shall be preferred in form of a memorandum signed by appellant or his pleader and presented to Court or to such officer as it appoints in this behalf ( Para 39).
Findings of Court – Contention that counter-claim cannot be tried as an independent suit for all purposes but is deemed to be an independent suit for purposes as mentioned in Code under Order 8 Rule 6A (2), (3) & (4) and for purpose of limitation as per Section 3(2)(b) of Limitation Act, 1963, cannot be countenanced for reasons to be stated presently – Court also cannot agree with argument that if counter claim is to be treated as a separate suit, independent from main suit, then it would amount to rewriting Order 8 Rule 6A (2), which mandates "a final judgment" and in "same suit- Counter claim as a separate suit would mean that there will be a "common judgment" as against "final judgment" and that it will be common for "both suits" as against mandate of having it in "same suit" per Order 8 Rule 6A (2) also does not convince us - Counter claim can also be set up through amendment (Order 8 Rule 8 Code) and by way of subsequent pleadings (Order 8 Rule 9 Code), treating counter claim as an independent suit would mean that a suit may be filed by way of amendment or by way of subsequent proceedings, is also not founded on a sound interpretation - One of consequence of amendment in 1976 amendment in Order 8 by virtue of insertion of Rule 6-D is that if in any case in which defendant sets up a counter claim suit of plaintiff is stayed, discontinued or dismissed, counter claim may nevertheless survives - Moreover, this clearly signifies independent character of counter-claim.
Result – Ordered accordingly.
ORDER :
These matters have been referred to the Larger Bench by the order of the Single Bench dated 19th December, 2017 passed in two Regular Second Appeals, namely, RSA Nos.57 of 2017 and 381 of 2017.
2. RSA No.57 of 2017 is plaintiff’s appeal against the judgment and decree dated 16.09.2016 passed by the Additional District Judge (II) Kangra at Dharamshala who thereby set aside the judgment and decree passed by the Civil Judge (Senior Division), Court No.1, Dehra, District Kangra in the civil suit as well as counter claim decided on 28.09.2012, dismissing the suit filed by the plaintiff/appellant and decreeing the counter claim of the defendants/respondents. Further prayer has been made to set aside the judgment and decree passed by Additional District Judge and decree the suit of the appellant/plaintiff and dismiss the counter claim filed by the respondents/defendants. The plaintiff in this case filed a suit for permanent prohibitory injunction, in which the defendants/respondents filed a counter claim. Both, the suit and the counter claim, were tried together and were allowed in part by a common judgment. The plaintiff was held entitled to the relief of permanent prohibitory injunction against the defendants over a part of the land classified as ‘gair-mumkin-abadi’ measuring 0-06-00 hectares, out of the total land measuring 0-10-91 hectares. The counter claim of the defendants was also partly allowed holding them entitled to the relief of permanent prohibitory injunction against the plaintiff, who was restrained from interfering over a portion of the land classified as ‘banjar kadeem’ measuring 0-04-91 hectares.
3. RSA No.381 of 2017 is defendant’s appeal against the judgment and decree dated 31.05.2017 passed by the Additional District Judge, Ghumarwin, District Bilaspur affirming the judgment and decree dated 30.06.2016 passed by the Civil Judge (Junior Division) Court No.2, Ghumarwin, District Bilaspur, who thereby decreed the civil suit filed by the plaintiff/respondent for recovery of an amount of Rs.2,25,975/- with interest at the rate of 15% per annum with quarterly rests from the date of filing of the suit till realization of the whole amount from the defendant and dismissed the counter claim for recovery of Rs.2,85,159/- filed by the appellant/defendant against the plaintiff/respondent. 4. The question that arose before the learned Single Judge was whether a common appeal questioning correctness of the judgment and decree passed in civil suit as well as in counter claim was legally maintainable before the Court below. The learned Single Judge noticing the conflict of opinion between the Single Bench judgment of this Court in RSA No.561 of 2005, titled Pohlo Ram vs. Jindu Ram and others decided on 28.10.2005 on one hand and three judgments of different Single Benches of this Court passed in (i) Smt. Satya Devi vs. Partap Singh and others, AIR 2006 HP 75 and (ii) H.P. State Forest Corporation through its Divisional Manager vs. Kahan Singh, 2017 (1) Him. L.R. 36 and in (iii) Mohan Singh vs. Inder Singh & others 2017 (1) Him. L.R. 368, on the other hand, while disagreeing with the view expressed in Pohlo Ram (supra), has referred the matter to the Larger Bench for an authoritative pronouncement.
5. We have heard Mr. B.M. Chauhan, Mr.Ajay Kumar, Mr.Sudhir Thakur, learned Senior counsels & Mr.Tek Chand Sharma, learned counsel appearing for the appellants and Mr.Sanjeev Kuthiala, learned Senior Counsel, appearing for the respondents in RSA No.57 of 2017 and Mr.K.D. Sood, Mr.Bhupender Gupta and Mr.Shrawan Dogra, learned Senior Counsel & Mr.Malkiyat Singh, learned counsel, appearing as interveners.
6. Mr. B.M. Chauhan, learned Senior Counsel appearing for the appellant in RSA No. 57 of 2017, argued that Section 2(2) of the Code defines decree as formal expression of an adjudication which conclusively determines the right of the parties with regard to all or any of the matters in controversy. Section 2(9) of the Code defines jud
