IMPORTANT POINT
Appellants failed to do separate appeals challenging decree in suit and counter claim before appellate court, first appeal itself barred by res judicata, second appeal not maintainable.

A.Hariprasad, J.—The substantial questions of law arising in this second appeal are thus:

Is a defendant, who raised a counter claim in the suit, bound to file two appeals if the suit was decreed after rejecting the counter claim? Will that part of the judgment, disallowing the counter claim, operate as res-judicata insofar as the appeal filed against the decree in the suit is concerned?

2. Factual matrix, in the shortest form, is thus: Appellants were defendants in a suit for permanent prohibitory injunction filed by the respondents alleging that they were trying to trespass into the plaint schedule property over which the respondents have exclusive title and possession. In the suit, the appellants filed a written statement raising a counter claim under Order 8, Rule 6A of the Code of Civil Procedure (in short, “CPC”). The appellants not only denied the allegations in the plaint that they attempted to trespass into the property, but also raised a contention that the respondents were trying to annihilate their right of way over the plaint schedule property. The trial court decreed the suit and dismissed the counter claim. The appellants took up the matter in first appeal to the lower appellate court. After re-appreciating the evidence, the lower appellate court dismissed the appeal confirming the decree of the trial court. It is pertinent to note that only one appeal was filed by the appellant challenging the decree in the suit as well as that in the counter claim.

3. Feeling aggrieved by dismissal of the appeal, the appellants have preferred this second appeal. At the time of hearing on admission, the above questions were raised.

4. Heard Shri Rajit, the learned counsel for the appellants elaborately. I have perused the records.

5. Learned counsel for the appellants contended that the suit and the counter claim should be regarded as a single/unified proceedings. It is also contended that there is no necessity to file two separate appeals challenging the adverse decisions in the suit and the counter claim. Some precedents were also cited at the Bar. Before dealing with the decisions cited, I shall deal with the statutory provisions. Order 8, Rule 6A CPC reads as follows:

“6A. Counter-claim by defendant—(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

On a careful reading of the above provision, it can be seen that a defendant in a suit is permitted by law to resist the action and, still further, to raise a counter claim against the claim of the plaintiff. In this context, it is apposite to note that Order 8 Rule 6 CPC empowers a defendant to raise a claim of set-off against the plaintiff’s claim in a suit for recovery of money. It is indisputable that the counter claim by the defendant need not be confined to monetary claims alone. It can be for any relief, subject to the condition that the claim shall be in respect of any right arising from a cause of action accrued to the defendant against the plaintiff either before or after