The plaintiff-applicant has approached this Court assailing order dated 1 December 2015, passed in Civil Appeal No. 7 of 2015 rejecting the contention of lack of pecuniary jurisdiction of the appellate court.
It is contended by the learned counsel for the applicant-plaintiff that the appellate court would lack jurisdiction to entertain the appeal being under valued at 5 lakhs rupees. The valuation of the appeal should have been valued at 15 lakhs rupees i.e. 5 lakhs rupees for suit and 10 lakhs rupees for the counter claim.
The applicant instituted a suit being Original Suit No.247 of 2003 (Ashok Kumar Singh Senger Vs. Om Prakash Chaturvedi and others) for permanent injunction and to declare the sale deed dated 22 November 2003 a void document. The suit was valued at 5 lakhs rupees i.e. half of the sale price of the alleged sale deed as the applicant claimed title over half of the suit property. The first and second respondents contested by filing written statement and a counter claim was sought seeking possession and damages of the disputed property. The counter claim was valued at 10 lakhs rupees i.e. value set forth in the sale deed. The suit was decreed by the trial court declaring half of the sale deed to be void, further, first and second respondents were restrained from taking possession without partition of the suit property, thus, rejecting their counter claim; aggrieved, respondents preferred an appeal before the District Judge, Jalaun at Orai valuing it at 10 lakhs rupees, thereafter, the appeal was withdrawn on the statement of the counsel. Upon reinstitution, the appeal was valued at 5 lakhs rupees as the appeal was directed against the judgement and decree of the suit. The respondents did not challenge dismissal of their counter claim in appeal. The applicant, therefore, filed an application contending that the appeal being under valued at 5 lakhs rupees, whereas, the valuation of the appeal should be 15 lakhs rupees.
It was sought to be contended that upon a suit being decreed and counter claim rejected, the valuation of the appeal would be the aggregate of the value of the suit and that of counter claim, since the entire proceedings being unified, therefore, in appeal single proceeding is sought to be challenged, irrespective of the dismissal of the counter claim.
Sri Manu Khare, learned counsel appearing for the first and second respondents would submit that the valuation of the appeal would depend upon the relief claimed by the respondents, it need not be the value of the suit; the valuation for court fee is different and distinct from valuation for the purpose of jurisdiction of the court, since decree allowing the suit was being assailed in appeal, therefore, valuation of the suit was set forth in appeal, the dismissal of counter claim was not challenged in appeal, therefore, there is no illegality, infirmity or perversity in the order passed by the courts below.
The rival submissions fall for consideration.
The point for determination is as to whether the appeal was correctly valued at 5 lakhs rupees for the purpose of jurisdiction.
Under the Code of Civil Procedure, 1882 Act No. XIV of 1882 (the old Code) i.e. prior to the present Code of 1908, provision for filing written statement and set-off was under Chapter III.
A special committee was appointed by the Council of Governor General of India to consider the amendment of the Civil Procedure Code. The said special committee submitted it's report. It was accepted and published in the Gazette of India (Part V) September, 1907.
The Code of Civil Procedure Act V of 19081, (the New Code) came to be enacted to consolidate and amend the Laws relating to the Procedure of the Civil Courts. The new Code received assent of the Governor General of India on the 21st March, 1908. As a result of new Code, amended provision Order 20, Rule 19 relating to the decree when set-off is allowed came on the statute book in place of Section 216 of the Old Code. The statement of Object and Reasons for enacting Order 20, Rule 19 in the present form in substitution of Section 216 of the Old Code read as under:
"The Committee have introduced an amendment to give effect to the view that appeals from decrees relating to set off should lie to the Courts to which appeal in respect of the original claim would lie".
There was no provision in the Code (Prior to Amended Act, 104 of 1976) in relation to counter-claim. The provision for filing counter-claim by a defendant was introduced, for the first time, by the 1976 Amendment to the Code of Civil Procedure, 1908 and consequently, Order 8, Rule 6-A to Order 8, Rule 6-G came to be inserted by virtue of which now the counter-claims can be set up by the defendant.
Consequent upon introduction of provisions relating to the counter-claim Order 20, Rule 19 also came to be amended, which now read as under:
Order 20, Rules 19(1) and (2):
(1) Where the defendant has been allowed a set off (or counter-claim) against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.
(2) Any decree passed in a suit in which a set off (or counter-claim) is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no setoff (or counter-claim) had been claimed.
One more provision which need to be noticed is Order 41 Rule 22 of the Code which reads as under:
Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation : A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
The above extracted Legislative history of the Code of Civil Procedure demonstrates that in the old Code of 1882 it was provided that where the set-off was claimed by the defendant and the decree was passed in his favour, the amount of that decree relating to the set-off was to determine the forum of appeal. The old Civil Procedure Code came to be replaced with new Code and Order 20, Rule 19(2) came to be inserted with a view to provide appeal from decree relating to set-off to the Court to which appeal in respect of original claim would lie. By subsequent amendment i.e. by Amending Act of 104 of 1977 Code came to be amended and counter-claim is brought on the same platform on which claim of set-off was.
Under Order 8, Rule 6-A (2) of the C.P.C. 1908, it is provided that a counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce final judgment in the same suit, both on the original claim and the counter-claim and Order 8 Rule 6-A (3) entitles the plaintiff to file a written statement in answer to the counter-claim while Order 8 Rule 6-A (4) clearly provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
Recognizing that a counter-claim is a cross-suit and not a separate suit, there is firstly, no registration of a counter-claim as a separate suit. Secondly, the Legislature has made a provision in Order 20, Rule 19(1) C.P.C., 1908 that whenever a set-off or counter-claim is allowed, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant and shall be for the recovery of any sum which appears to be due to either party. Therefore, essentially a setoff or counter-claim is allowed, then the provision of Order 20, Rule 19(1) of the C.P.C., 1908 comes into play.
There is no specific provision for drawing a separate decree for a counter-claim in as much as a counter-claim is not registered separately. What the law contemplates is treating the counter-claim as a cross-suit.
Consequently, when a counter-claim is allowed or partly granted or dismissed by a common judgement, a single decree is drawn up by the Court and no separate decrees are drawn up in respect of the plaint and the counter-claim. Similarly, under Order 20, Rule 19(1) C.P.C., 1908, no separate decree is required to be drawn if counter-claim is allowed, but just one decree is provided therein.
A counter claim is a suit, though the same is taken in the written statement. Just as a suit is filed by the plaintiff, defendant seeks a relief against the plaintiff on a cause of action which he has against the plaintiff. It is an independent cause of action which could also be agitated in a separate suit. It is to avoid multiplicity of proceedings, defendant is given liberty to file a counterclaim and get adjudication. Order 8, Rule 6-A (2) CPC says that there can be a final judgement in the same suit, both on the original claim and counter-claim. In common parlance, 'common judgment' means, 'decision arrived simultaneously in more than one suit tried together'. The counter claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon, the principle therefore, is that a counter claim has to be treated as separate suit,only for the purpose of convenience and speedy disposal of rival claims, the counter claim in a suit is made permissible.
Now let me turn to the provisions relating to the appeals.
Under the Code of Civil Procedure, 1908, the provision for filing appeal against a decree is contained in Section 96 and the procedure is prescribed in Order XLI of the C.P.C.
Order 20, Rule 19(2) specifically provides that any decree passed in a suit in which a set-off or counter-claim is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off or counter-claim had been claimed. Therefore, on a plain reading if any decree passed in a suit shall be subject to the same provisions in respect of appeal to which it would have been subject.
It is evident therefrom that where there is any set-off or counter-claim actually preferred, the decree would be subject to the same provisions in respect of appeals, as if no set-off or counter-claim had been claimed.
Now the provisions relating to appeals in respect of decree is not only governed by the provisions contained in Section 96 and Order XLI of the C.P.C., 1908, but also subject to the provisions contained in the Bengal, Agra and Assam Civil Courts Act 1887, the Limitation Act, 1963 and Court Fees Act, 1870.
Section 21 of the Bengal, Agra and Assam Civil Courts Act says that an appeal from a decree or order of a Civil Judge shall lie (a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five lakhs rupees2 and that for the purpose of finding the forum of appeal it is the value of the original suit which has to be determined and not the value of the appeal itself, and if the value of the original suit is more than five lakhs rupees, whatever the value of the appeal may be, the appeal shall lie to the High Court. The subject matter of an appeal is valued according to the provisions of the Suits Valuation Act and the Court Fees Act. It is not governed by the Bengal, Agra and Assam Civil Courts Act. (Vide-Sri Purshottam Das Tandon and others Vs. Sri Shyam Nath Segal and others3), Smt. Shalu sharma Vs. Ajay Sharma4 and Gaya Prasad and others Vs.Ram Charan5.
The Full Bench of Bombay High Court in Kazi Syed Saifuddin Vs. Kasturehand Abhayrajji Golchha6; held that once the suit is valued and the jurisdiction of the Court is thus determined at the stage when the suit is instituted, that will be the valuation for the subsequent proceedings in the suit also. Obviously, therefore, the appeal being continuation of the suit, the valuation will govern appeal as well and for the purpose of forum of appeal. It was further held that where both suit and counter claim are dismissed, the subject matter of the appeal would be the plaint. Hence valuation would be as per the valuation of the plaint and Court fee as payable on the plaint, would be as due and payable thereon. The plaintiff cannot be made to value his appeal on the basis of the combined valuation of the plaint and counter claim, in respect of which he makes no claim. The report was subsequently followed in Teofilo Barreto Vs. Sadashiva G. Nasnodkar and others7.
The Kerala High Court in Pampara Philip Vs. Koorithottiyil Kinhimohammed8; observed that in a suit where counter claim is made, there may be cases where plaint is dismissed and the counter claim is allowed, the plaintiff need challenge only the counter claim. In such circumstances, it depends upon the valuation of the counter claim that may decide the jurisdiction. Where in a case the suit is allowed and defendant's claim is disallowed, so it becomes necessary for the defendant to challenge both the findings which according to him is unified proceeding. So when it is taken as a unified proceeding then the subject matter of the appeal would be subject matter of the suit plus counter-claim.
Learned counsel for the applicant placed heavy reliance upon the judgement rendered by Kerala High Court to urge that where the plaint claim has been allowed and the counter claim has been disallowed, the respondents were bound to challenge both the findings, therefore, the valuation of appeal would be the aggregate sum of the suit and counter claim. In the facts of the present case, the respondents challenged the judgement and decree of the suit, accordingly, valued the appeal; but have not challenged the dismissal of the counter claim in appeal. In such circumstances, the respondents cannot be compelled to value the appeal by adding valuation of the suit and counter claim. The valuation of the appeal would be valuation of the suit which would determine the jurisdiction.
The jurisdiction of the Appellate Court cannot be made dependent on the fluctuating valuation of the claim in appeal. The valuation of claim in appeal has relevance only for the purposes of court fee. The valuation for the purposes of determining jurisdiction and for the purpose of court fee are two distinct factors. They need not be identical or common. The appellant may restrict or relinquish part of the claim and accordingly pay proportionate court fee thereon.
The courts below in my opinion have correctly held that valuation of the suit would be valuation of the appeal for determining the jurisdiction of appellate court and not the combined value of the suit and counter claim.
For the reasons stated herein above, I find no illegality, infirmity or jurisdictional error in the impugned orders.
The petition being devoid of merit is accordingly dismissed.
No order as to costs.
Date: 16.03.2016 sfa/