A counterclaim is a cross-suit and the court entertaining it treats it as a separate action. There is nothing in law which precludes a court from treating a counterclaim as a plaint in a cross-suit. The essence of a counterclaim is that the defendant has an independent cause of action in the nature of a cross action and not merely a defence to the plaintiff's claim.

C.K. Prasad, J

1. This is plaintiffs appeal under section 100 C.P.C. Second Addition District Judge, Raipur by judgment and decree dated 20.3.1976 passed in Civil Suit No. 1 A of 1971 decreed the plaintiffs' suit and held that they are the owners of house no. 25/5-1, 2 and plot bearing no. 25/5-1, 3 in Kankajipada Ward in the district of Raipur and the defendant was restrained from ejecting them or their tenants. The defendant's counter claim for possession of the same property and mesne profits was dismissed. Aggrieved by same defendant preferred First Appeal No. 129 of 1976 and this Court by its judgment and decree dated 9.8.1980 allowed the appeal and dismissed the plaintiffs' suit. Decree in relation to dismissal of the counter claim of the defendant for possession of the property and mesne profits, was set aside and the matter remitted back to the trial Court for deciding the counter claim. It is common ground that plaintiffs thereafter filed Civil Appeal No. 6136 of 1983 before the Supreme Court but the same has been dismissed.

2. After the remand, the counter claim of the defendant was heard and decided by First Civil Judge, Class I, Raipur and by judgment and decree dated 7.3.1996, it decreed the counter claim. The plaintiffs appeal against the aforesaid judgment and decree has been dismissed by the Distrcit Judge, Raipur by Judgment and decree dated 6.1.1997 passed in Civil Appeal No. 9-A of 1995. Aggrieved by the same, the plaintiffs have filed this appeal under section 100 C.P.C. and by order dated 21.4.1997 the appeal was admitted on the following substantial question of law -

Whether the judgment and decree passed by the Courts below are without jurisdiction as Civil Judge, Class I, had no jurisdiction to try the counter claim, in view of the judgment and decree of this Court, dated 19.8.1980, passed in First Appeal No. 129 of 1976 remanding the case for trial by the Second Additional District Judge, Raipur ?

3. It is relevant here to state that the suit filed by the plaintiffs in which the defendant laid his counter claim was tried by the Additional District Judge as during that period, according to the prescribed pecuniary limits, suit lay before the District Judge. However, after remand, when the matter was pending before the Additional District Judge, the pecuniary jurisdiction of the Courts was increased and the suit according to the revised prescribed pecuniary jurisdiction was to lie before Civil Judge. Accordingly the counter claim of the defendant was transferred to the Civil Judge, who as stated earlier granted the relief to the defendant, which has been affirmed by the lower appellate Court.

4. Shri Aradhe in support of the appeal submits that by judgment and decree dated 19.8.1980 passed by this Court in First Appeal No. 129 of 1976 the case was remanded to the trial Court and the trial Court being the Court of Addl. District Judge, notwithstanding the fact that during the pendency of the said trial, jurisdiction was conferred on the Civil Judge to hear suits of the valuation which was earlier within the jurisdiction of the District Judge, the counter claim ought not to have been transferred to the Civil Judge. He submits that as the main suit was decided by the Additional District Judge, counter claim in the suit would not have been decided by the Civil Judge. Accordingly he submits that the judgment and decree of the Civil Judge as also the lower appellate Court are completely without jurisdiction.

5. Mr. Chourasia, however, appearing on behalf of the respondent submits that the plaintiff having not raised his objection before the trial Court as also lower appellate Court and having taken chance and invited the judgment, cannot be permitted to question the same in this appeal. It is common ground that at the time when the Civil Judge passed the order, it had pecuniary jurisdiction. Answer to the aforesaid submission shall depend upon the answer to the question as to what is a counter claim.

6. In this