Andhra HC (Pre-Telangana)
M. Sreeramulu vs P. Mohammed Hussain And Anr. on 12 September, 2007
Equivalent citations: 2008(2)ALD855
JUDGMENT P.S. Narayana, J.
1. These two second appeals are being disposed of by a Common Judgment.
2. On 30.10.1998, these two second appeals are admitted on the strength of the substantial questions of law raised in Ground No. 3 of the Memorandum of Grounds in the respective second appeals. The said substantial questions of law shown in Ground Nos. 3(a) and (b) are as hereunder:
(a) Whether the plaintiff can file the suit against the 1st defendant without the leave of the trial Court as contemplated under Section 91 of the Code of Civil Procedure as the only allegation of the plaintiff in the suit is the 1st defendant is attempting to construct a compound wall at the other end of the 30' wide public road abutting to his house by encroaching upon it, which amounts to a public nuisance and in no way a private grievance?
(b) Whether the observation of the learned appellate Judge in Paragraph 11 of his judgment to the effect that the counter-claim filed by the 1st defendant can be made only in a money suit and not in a suit for injunction and therefore the counterclaim of mandatory injunction of the 1st defendant is not maintainable under the provisions of Order VIII Rule 6 of the Code of Civil Procedure and hence has to be rejected is correct, in view of the provisions contained under Order VIII Rule 6-A(1) to (4) of the Code of Civil Procedure?
3. Heard Smt. Rekha Prasad, Counsel representing the appellant and Sri T.S. Anand, the Counsel representing the respondents.
The respective Counsel had taken this Court through the pleadings of the parties, the evidence available on record and also the findings recorded by the Court of first instance and also the appellate Court.
4. The 1st respondent herein instituted the suit O.S. No.236/89 on the file of II Additional District Munsif, Kurnool for the relief of permanent injunction restraining the 1st defendant from making any constructions and from digging pits anywhere in the 30' road North to the plaintiff's house. The 1st defendant filed written statement inclusive of a counter-claim praying for the relief of mandatory injunction and other appropriate reliefs. A rejoinder also was filed denying the allegations made in the written statement. On the strength of the pleadings of the parties, Issues and additional Issues were settled. The plaintiff examined himself as P.W. 1 and the 2nd defendant was examined as P.W. 2 and Exs.A.1 to A.6 were marked. The 1st defendant examined himself as D.W. 1 and Exs.B.1 and B.2 were marked. The Court of first instance after recording findings in detail on appreciation of the evidence of P.W. 1 and P.W. 2 and D.W. 1 and Exs.A.1 to A.6 and Exs.B.1 to B.3, decreed the suit of the plaintiff for perpetual injunction and also granted a decree in favour of the 1st defendant directing the plaintiff and the 2nd defendant to demolish their constructions within CDEF as shown in Ex.A.1 and the parties were directed to bear their own costs. No doubt, certain further directions also had been incorporated. Aggrieved by the same, appeals A.S. No. 55/ 96 and 79/96 were preferred on the file of II Additional District Judge, Kurnool and the appellate Court having framed the Points for consideration, appreciated the oral and documentary evidence available on record, recorded findings at Paras 6, 7, 8, 9, 10 and 11, came to the conclusion that the counterclaim of the 1 st defendant praying for the relief of mandatory injunction is not maintainable since such counter-claim can be made only in a money suit but not in a title suit and allowed the appeal A.S. No. 55/ 96 negativing the relief of mandatory injunction and dismissed the appeal A.S. No. 79/96 confirming the decree and judgment of the Court of first instance granting permanent injunction. Aggrieved by the same, the appellant/1st defendant had preferred these two second appeals.
5. The substantial questions of law, on the strength of which these second appeals had been admitted, already had been specified supra.
6. For the purpose of convenience, the parties hereinafter would be referred to as "plaintiff and "defendants" and it is needless to say that the contest is between the plaintiff and the 1st defendant. It was pleaded in the plaint as hereunder:
The plaintiff, 2nd defendant and one M. Chennoji purchased plaint plan ABCD house plot under a registered sale deed dated 2.6.1978 and later they partitioned the property under registered partition deed dated 15.1.1982 wherein two plots facing towards Northern side road fell to the share of the plaintiff and the 2nd defendant and the rear plot fell to the share of Sri Chennoji Rao. The plaintiff and the 2nd defendant also purchased the open space DCEF under another registered sale deed dated 7.4.1980 and they constructed houses in their respective shares in 1982. The 30 ft. road in front of the plaintiffs house towards North which runs West to East is being used by general public and it is only the road to the plaintiffs house. While so, the 1st defendant who is an influential person in the locality and who is having the premises North to the said 30 ft. road in front of the plaintiff's house D. No. 40/30-23A and the 2nd defendant's house with D.No.40/30-22, is trying to construct a compound wall encroaching into the said 30 ft. road, blocking and obstructing the way of the plaintiff and the 2nd defendant. The 1st defendant also accumulated stones on 20.5.1989. When the plaintiff and the 2nd defendant objected for the same on 26.5.1989 the 1st defendant demanded Rs. 15,000/- from them and when they refused, the 1st defendant is bent upon to go ahead with the illegal construction high-handedly and hence the suit.
7. The 1st defendant filed written statement inclusive of the counter-claim with the following averments:
It is pleaded that on 9.1.1971 the 1st defendant purchased from Harinath open site admeasuring 18 mts. x 17.5 mts. The Northern boundary of the 1 st defendant is Bellan Road and the Southern boundary is the road leading to the bungalow of Mr. Harinath. The said open space measures 80 mts. from North-South. Therefore, the road shown as the Southern boundary of the open site is 80 mts. away from Bellari Road. The 1st defendant came into possession of the site on the date of sale and is enjoying the same in his own right. While so, on 2.6.1978, the defendants vendor Harinath sold open site to the plaintiff, 2nd defendant and one Chinnoji Rao which admeasures 43 ft. x 75. The said site North to South measures 75 ft. The Northern boundary of the said site is shown as 30 ft. road. The total area of the open site is 358 sq. yards roughly. The plaintiff and the 2nd defendant purchased from the same Harinath, further extent of open site admeasuring 16 ft. x 43 ft. on 7.4.1980. The said site from North to South measures 16 ft. and the Northern boundary is shown as 30 ft. rasta. The partition between the parties. Further, it is pleaded that the aforesaid pleading is based on documentary evidence and the allegations made contra made in the plaint are not true and they are devoid of force. The plaintiff also claimed that the open space on the North of the site under partition deed divided equally between the plaintiff and the 2nd defendant. The alleged encroachment by the 1st defendant and demand of Rs. 15,000/- is denied. Further, it is specifically pleaded that the plaintiff and the 2nd defendant themselves encroached into the open site of the 1st defendant to the North of their site and made constructions. The road must be measured from CD upto 30 ft. towards North. The area covered by VTPG and PQST form part of 30 ft. road and the site of the 1st defendant. The construction made in that area is to be demolished and hence the 1st defendant made counter-claim to that effect i.e., to remove the construction within VSQG in the plan filed by him.
8. Subsequent thereto a rejoinder was filed denying the allegations made in the written statement of the 1st defendant.
9. The 1st defendant also filed additional written statement with the following averments:
It is pleaded that when Harinath had left road as described in the title deed of the plaintiff, the road becomes the common property over which Harinath has no independent title to sell any portion thereon. When there is no title and possession, Harinath cannot convey title or possession under a registered sale deed dated 7.4.1980 in favour of the vendees. A registered sale deed containing false recitals cannot demolish the admitted recitals in an admitted title deed dated 2.6.1978. Further, it is pleaded that attesting does not convey title. The plea of estoppel applies with greater force to the plaintiff and 2nd defendant and not to the 1st defendant. In the road connecting bungalow and the road running North-South on the Western side of the plaintiff and the 2nd defendant encroached, it is no misnomer that the said road running from West-Hast was at a distance of 80 mts. from Kurnool/ Bellary Road. The constructions or encroachments are not within the site purchased. In a rejoinder, a mistake in the pleadings cannot be pleaded. The constructions of plaintiff and the 2nd defendant are encroachments and therefore there are no grounds to dismiss the counter-claim or to decree the suit of the plaintiff.
10. The following Issues and additional Issues were framed before the Court of first instance:
Issues:
1. Whether there is 30 ft. rasta on the North of the houses of the 2nd defendant and plaintiff, if so, it does not form part of the site of the 1st defendant?
2. Whether the plaintiff and the 2nd defendant made constructions in the rasta and site of the 1st defendant?
3. Whether the plaintiff is entitled to permanent injunction?
4. To what relief?
Additional Issues:
1. Whether the 1st defendant is entitled to decree directing the plaintiff and the 2nd defendant to demolish their constructions in VSQG of the plaint plan?
2. Whether the 1st defendant is entitled for exemplary costs of Rs. 1,000/-
under Section 35(a) of C.P.C.?
11. In the appeals preferred, A.S. Nos. 55/96 and 79/96 on the file of II Additional District Judge, Kurnool, at Para 5, the following Points for consideration were framed:
1. Whether the plaintiff encroached 30 ft. width of road in front of his house on the North and also encroached the site of the 1st defendant 7
2. Whether the existing 30 ft. width of road on the South of the 1st defendant's site belongs to the 1st defendant?
12. P.W. 1, the plaintiff in the suit deposed about the facts narrated in the plaint and also deposed in relation to the sale deeds and Ex.A series. The evidence of P.W. 2 also is available on record. D.W.I, the 1st defendant, deposed in relation to the averments made and the stand taken by him in the written statement. Ex.B1 is the plan filed along with the written statement and Ex B2 is a certified copy of the sale deed. The plaintiff also relied upon the plan Ex.A.1 and the sale deeds Exs.A2 and A3 and the partition deed Ex.A4, the photograph Ex.A5 and the rough sketch Ex.A6.
13. In Raman Sukumaran v. Velayudhan Madhavan , the learned Judge of Kerala High Court after referring to Laxmidas v. Nanabhai observed as hereunder:
The petitioner's Counsel supports his submission with a reference to the wording of Rule 6. But this can be easily met. While Rule 6 opens with the words "Where in a suit for the recovery of money the defendant claims" Rule 6-A opens with the words "A defendant in a suit may". The distinction is obvious and cannot escape notice. While Rule 6 deals with suits for money Rule 6-A deals with all suits. The submission made by the petitioner's learned Counsel on the words "in addition to his right of pleading a set-off under Rule 6" can also be easily met. Rule 6-A enables a defendant in a suit for the recovery of money not only to plea a set-off but also set-up a counter-claim. That does not automatically lead to the inference that Rule 6-A was introduced - only to safeguard counter-claims in suits for recovery of money. The scheme of the new rule is to permit the defendants to set up counterclaims, which arise between the parties and which are cognizable by the Court where the suit is pending. To accept the petitioner's case would be to destroy the object of the new rules. The object appears to be to reduce pendency of cases so that causes of action and cross-claims similar in nature could be clubbed together and disposed of by a common judgment. Now a specific provision has been enacted though even before the introduction of Rule 6-A, in appropriate cases, Courts had entertained and disposed of counter-claims.
14. In Ramesh Chander v. C.A. Hanumantha Rao , a learned Judge of this Court after referring to Jag Mohan Chawla v. Dere Radha Swami Satsang , Shanti Rani Das v. Dinesh Chander Dey 1998 Important and Selected Judgments (Banking) 121; Mahendra Kumar v. State of M.P. , observed that where the cause of action for counter-claim filed by the defendant arose even prior to the filing of the suit and written statement and it continued during the pendency of the suit under the guise of interim injunction obtained in a suit for perpetual injunction and counterclaim filed by the defendant after filing written statement praying for the relief of mandatory injunction against the plaintiff for demolition of illegal structures made over the plaint schedule site is maintainable.
15. A Division Bench of this Court in S. Prakash Rao and Ors. v. S. Shyam Rao , while dealing with this question held as hereunder:
Before deciding these two questions a preliminary objection raised by the learned Counsel for the appellants has to be decided first. The learned Counsel for the appellant submitted that a counter-claim cannot be put forth in view of Order 8 Rule 6 of C.P.C. He submits that a counter-claim can only be filed in money suits and Rule 6-A is controlled by Rule-6. It will be pertinent to reproduce Rule 6 and 6-A of Order 8 C.P.C.
Order 8 Rule 6
6. Particulars of set-off to be given in written statement.--(1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parries fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.
Effect of set-off - (2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.
6-A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading as 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 counterclaim 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 plaint.
Mr. Pratap Redely, learned Senior Counsel appearing for the appellants referred to number of judgments in this connection. He referred to Jashwant Singh v. Darshan Kumar , L. Manohar Lal v. Madan Lal , Hyderabad Roller Flour Mill Co. Ltd. v. Vallabhdas 1963 (2) An.W.R. 447, Sheobachan v. Madho Saran and Raman Sukumaran v. Velayudhan Madhavan , but the learned Counsel appearing for the respondent submits that this was the position before incorporation of Rule 6-A but after the amendment in Code of Civil Procedure and incorporation of Rule 6-A in Order 8 the whole law on the subject has changed and in order to avoid multiplicity of the suits the Parliament thought it proper that in all types of suits counter-claims could be filed. He relied Jag Mohan Chawla v. Dera Radha Swami Satsang (supra), Kavindra Jain v Amritlal , Anand Enterprises, Bangalore v. Syndicate Bank, Bangalore AIR 1990 Kam. 1975, Gaya Prasad v. Smt. Jamwanti Devi 1998 (4) City Civil Court 164 (Pat.) and Ramsewak Kashinath v. Sarafuddin . There are number of judgments of various High Courts, some of them are pre-amendment and some of them are after amendment of the Code of Civil Procedure. Generally speaking some of the High Courts took one view whereas the other High Courts took the other view, but, since the matter is no longer res integra and there are authoritative pronouncements from the Supreme Court therefore we will not be dealing in detail with the judgments which have been cited at the Bar and which have been referred to above. In this connection we refer to two judgments of Supreme Court being Gurbachan Singh v. Bhag Singh and Jag Mohan Chawla v. Dera Radha Swami Satsang (supra). In Gurbachan's case (supra), the plaintiffs filed a suit for perpetual injunction against the defendants. The defendants filed the written statement contending that the plaintiffs and some of the defendants had trespassed into their land of an extent of 3 kanals and they were in unlawful possession. The defendants raised a counter-claim in the written statement for possession. The trial Court while dismissing the suit of the plaintiffs granted a decree of possession in favour of the defendants. On appeal it was confirmed by the High Court. Second appeal was also dismissed by the High Court. The contention raised before the Supreme Court was that, in a suit for perpetual injunction the respondents could not lay any counter-claim for possession, but the Supreme Court found:
It is true that Rule 6-A(1) was introduced by Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter-claim or set-off cannot be set-up in other suits. The Law Commission of India had recommended, to avoid multiplicity of proceedings, right to the defendants to raise the plea of set-off in addition to a counter-claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter-claim or set-off had accrued to defendant either before or after the filing of the suit. The limitation was that the counter-claim or set-off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter-claim is in the nature of a claim for damages or not. Further limitation was that the counter-claim should not exceed the pecuniary jurisdiction of the Court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter-claim beyond its pecuniary jurisdiction. Thus considered we hold that in a suit for injunction, the counter-claim for possession also could be entertained, by operation of Order 8 Rule 6-A(1) of CPC.
Therefore, the Supreme Court authoritatively held that in a suit for injunction a counterclaim for possession could also be entertained by operation of Order 8 Rule 6-A(1) of the Code of Civil Procedure. In Jag Mohan Chawla's case also (supra), the same question was raised. In Para 5 of the judgment the Supreme Court went in detail and considered the earlier judgments also on the subject. Since the whole law has been discussed in this paragraph the whole paragraph is reproduced:
5. The question, therefore is; whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? It is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6A(1) provides that a defendant in a suit may, in addition to his right of pleadings a set-off under Rule 6, set up by way of counterclaim 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 damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to Sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplifies that 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. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim is directed to be treated, by operation of Sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunila Kabarwala , had come to consider the case of suit and cross-suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partner in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court-fee as plaint. They also sought a prayer to treat the counter-claim as a cross-suit. The trial Court dismissed the suit and the counterclaim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross-suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be counterclaim for settlement as a cross-suit. The counter-claim could be treated as a cross-suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20 Rule 18, C.P.C. but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right to the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In Sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parlies to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words ''any right of claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for tiling the written statement expires. The defendant may setup a cause of action which has accrued to him even after the institution of the suit. 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. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, the Legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being on independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar v. State of Madhya Pradesh , where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.
In view of this authoritative pronouncement of the Supreme Court we hold that the counter-claim in the present case could validly be raised and could validly be decided. Therefore, the preliminary objection raised by Mr. Pratap Reddy deserved to be rejected and is accordingly rejected.
16. The under noted decisions also may be glanced at in this context:
Rohit Singh and Ors. v. State of Bihar now State of Jarkhand 2006 (6) ALT 45 (SC), Kommu China Saidaiah and Anr. v. Jullela Gangamma and Anr. , Narayan Dutt v. Subhash Chander 2001 (4) CCC 402 (J&K), Pathrose Samuel v. Karumban , Bhagtu App v. Melu Ram 1992 (1) 101 PLR 635, Mohan Lal v. Bhawani Shanker AIR 2002 Raj. 144, Gowramma v. Nanjappa AIR 2002 Kar. 76, Sheo Shankar Prasad v. Smt. Bacha Devi and Ors. 2001 AIHC 2366 (Pat.), Suman Kumar v. St. Thomas School and Hostel , Aninda Saha and Anr. v. Amal Saha 2001 AIHC 2956 (Cal.), MF. Katariya v. L.H. Katariya , Surabhi Agarwal v. Sanjay Agarwal .
17. It is no doubt true that the Court of first instance in a way had recorded inconsistent findings and made conflicting decrees. When positive relief of perpetual injunction had been granted in favour of the plaintiff and when a specific stand had been taken in the written statement by the 1st defendant further making counterclaim claiming the relief of mandatory injunction, granting both the reliefs by the Court of first instance cannot be sustained. In a way, it would amount to making conflicting decrees. It is also pertinent to note that when two appeals had been preferred, one as against the granting of the counter-claim and another as against the granting of the perpetual injunction, the appellate Court should have recorded proper reasons while dealing with the relief of counter-claim as well in the light of the evidence available on record and also in the light of the contentions advanced by the parties, but however, the appellate Court recorded that a counter-claim in a matter of this nature cannot be maintained at all and such counter-claim can be made only in a money suit and accordingly the appellate Court was not inclined to go into the merits and demerits relating to the counter-claim of the appellants in these appeals. No doubt, the Counsel representing the respondents would contend that as far as the decree and perpetual injunction is concerned, since the concurrent findings had been recorded, the said findings not to be disturbed in a second appeal. It is however unfortunate that the findings recorded in relation to the relief of perpetual injunction and also in relation to the counter-claim of mandatory injunction being so closely interlinked, these aspects being interdependent, the said contention advanced by the Counsel representing the respondents cannot be accepted in the peculiar facts and circumstances of the present case.
18. It is made clear that this Court is not expressing any further opinion relating to several contentions advanced relating to the merits and demerits of the matter and inasmuch as the counter-claim was not decided at all on merits and was held to be not maintainable, the decrees and judgments made by the appellate Court are hereby set aside and the matters are remanded to the appellate Court to appreciate the oral and documentary evidence available on record in the light of the respective reliefs prayed for both in the suit and the counterclaim as well and record findings in accordance with law.
19. Accordingly, the second appeals are hereby allowed to the extent indicated above. Since this Court is making an order of remand as specified supra, the parties to bear their own costs.