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2026 Supreme(HP) 796
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Romesh Verma, J.
Paras Ram (deceased) through LRs. - Appellant
Versus
Chatro (deceased) through LRs. And another - Respondents
RSA No. 337 of 2022
Decided On : 02-07-2026
For the Appellant :Mr. N. K. Thakur, Sr. Advocate with Mr. Karanveer Singh, Advocate.
For the Respondent:Mr. Nimish Gupta, Advocate
A composite appeal against dismissal of suit and decreeing of counter-claim is not maintainable; separate appeals are required. However, the appellate court should alert the appellant and grant opportunity to file a separate memorandum of appeal.
Headnote:(A) Code of Civil Procedure, 1908 - Order VIII Rules 6A to 6G - Counter-claim - Nature and scope - A counter-claim is a cross-suit and its dismissal or decree amounts to a separate decree, appealable independently - Order XLI Rule 1 - Power of appellate court to dispense with filing of copy of judgment twice if already part of memorandum.
(B) Appeal - Maintainability - Composite appeal against dismissal of suit and decreeing of counter-claim - Held, not maintainable - Two separate appeals are required - However, appellate court must alert the appellant and grant opportunity to file a separate memorandum of appeal before dismissing the composite appeal - If separate appeal is filed within time granted, it shall be registered without limitation and decided together with the original appeal.
(C) Res Judicata - Non-filing of separate appeal against one of two decrees - Attracts principles of res judicata, waiver and estoppel.
Facts of the case:
The plaintiff filed a suit for permanent prohibitory injunction against the defendant. The defendant filed a counter-claim seeking declaration and permanent prohibitory injunction. The trial court dismissed the suit and decreed the counter-claim. The plaintiff filed a single composite appeal before the First Appellate Court, which dismissed the appeal affirming the trial court's decision. The plaintiff then filed a Regular Second Appeal before the High Court. The respondent raised the preliminary objection that a composite appeal was not maintainable as two separate decrees (dismissal of suit and decreeing of counter-claim) required two separate appeals.
Issues: Whether a composite appeal against dismissal of suit and decreeing of counter-claim is maintainable before the First Appellate Court.
Findings of Court:
The High Court, relying on the Division Bench decision in Ramesh Chand vs. Om Raj and the Supreme Court in Charan Singh vs. Ram Saroop, held that a composite appeal is not maintainable. The proper course is to file two separate appeals. However, the First Appellate Court ought to have alerted the appellant about the requirement and given him an opportunity to file a separate memorandum of appeal. The High Court set aside the First Appellate Court's judgment and remitted the matter back with liberty to the plaintiff to file an independent appeal within six weeks.
Ratio Decidendi: A composite appeal against dismissal of suit and decreeing of counter-claim is not maintainable as two separate decrees arise. The appellate court must inform the appellant of the defect and grant an opportunity to cure it by filing a separate appeal; failure to do so renders the appellate judgment unsustainable.
Result: Appeal disposed of. Judgment and decree of the First Appellate Court set aside. Matter remitted to the First Appellate Court. Plaintiff granted six weeks to file a separate memorandum of appeal, which shall be registered without limitation. Both appeals to be decided together expeditiously.
Legal Category Hierarchy
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practice and procedure
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appeals
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regular second appeal
- maintainability of composite appeal
- requirement of separate appeals
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first appellate court
- duty to alert appellant
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regular second appeal
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counter claim
- nature as cross-suit under order viii rule 6a
- res judicata
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appeals
JUDGMENT :
Romesh Verma, J.
The instant appeal arises out of judgment and decree, as passed by the learned Additional District Judge, Chamba, dated 26.09.2022, whereby the appeal filed by the appellants/plaintiffs came to be dismissed and the judgment and decree, as passed by the learned Civil Judge, Chamba, District Chamba, H.P. dated 11.05.2022, was affirmed whereby, the suit, as filed by the plaintiff was dismissed and the counter claim as preferred by the defendant was ordered to be decreed.
2. The facts which emerge in the case are that the plaintiff/appellant Paras Ram filed a suit for permanent prohibitory injunction in the Court of learned Civil Judge, Chamba on 03.03.2010. It was averred in the plaint that one Chatro who adopted son of Singhu is recorded owner of the suit land comprised in khata khatauni No. 9/12, khasra Nos. 531, 533, 538, 553, 561, 569, 574 and 578, kitta 9 measuring 03- 15-00 bighas, situated at Mauza Khalu, Pargna Diur, Tehsil Salooni, District Chamba, H.P. and the same is evident from the copy of jamabandi for the year 2008-09. It was stated that the plaintiffs are in possession of the suit land being “Gair Marusi Tenant” since the time of their forefathers. The said fact was duly recorded in the revenue record and the same is evident from the copy of jamabandi for the year 2008-09. The defendants who are strangers, started causing interference and nuisance over the suit land in the last week of February, 2010. The defendants threatened to dispossess the plaintiffs from the suit land forcibly and illegally by employing extra judicial means. The plaintiffs requested the defendants time and again not to indulge in such illegal acts and desist from causing interference. However, the defendants did not accede to the request of the plaintiffs. Therefore, it was prayed that a decree for permanent prohibitory injunction, restraining the defendant from interfering, causing nuisance, damage or taking forcible and illegal possession over suit land comprised in khata khatauni No. 9/12, khasra Nos. 531, 533, 538, 553, 561, 563
569, 574 and 578, kitta 9 measuring 03-15-00 bighas, situated at Mauza Khalu, Pargna Diur, Tehsil Salooni, District Chamba, H.P. be passed in favour of the plaintiffs.
3. The suit came to be resisted by the defendant Chatro @ Chattar Singh by filing written statement to the plaint and refuted all the averments as made in the plaint by raising various preliminary objections such as maintainability, jurisdiction and cause of action etc. On merits, all the contentions as made in the plaint were denied. It was stated that the defendant is recorded owner of the suit land. It was averred in the written statement that in fact the suit land was once owned by one Nihala and was in cultivating possession of Sh. Hoshiaru son of late Lehnu as tenant. Sh. Hoshiaru was the only son of Sh. Lehnu from the womb of Chameli. After the death of Lehnu, Chameli performed second marriage with one Kirpu and form this marriage, plaintiff was born. Chameli in connivance with the revenue staff got her recorded as a tenant over the suit land without any basis knowing well that the defendant being son of Sh. Hoshiaru is entitled to succeed the tenancy right which is wrong and illegal and not binding upon the parties. Neither Chameli nor the plaintiff ever came in possession of the suit land. Therefore, it was prayed that the suit as filed by the plaintiff deserves to be dismissed.
4. After filing the written statement by Chatro @ Chattar Singh, counter claim also came to be filed by Chatro @ Chattar Singh and Sh. Chatro son of Singhu before the learned trial Court. In the counter claim, it was prayed that the suit as instituted by the plaintiff be dismissed and decree for declaration to the effect that defendant No.1 had become owner in possession of property comprised in khata khatauni No. 9/12, khasra Nos. 531, 533, 538, 553, 561, 563 569, 574 and 578, kitta 9 measuring 03-15-00 bighas, situated at Mauza Khalu, Pargna
