Calcutta High Court (Appellete Side)
Dr. Amitabha Datta vs Kiran Rasaily on 31 January, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
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FORM NO. J(2)
IN THE HIGH COURT AT CALCUTTA
Civil/Appellate/Revisional Jurisdiction
Present:
The Hon'ble Justice Subhro Kamal Mukherjee.
and
The Hon'ble Justice Tarun Kumar Gupta.
F.A.T. No.111 of 2010
With
C.A.N. No.3173 of 2010.
Dr. Amitabha Datta ...appellant.
-Versus-
Kiran Rasaily ...respondent.
Mr. Durgadas Purkayastha,
Mr. Jiban Hari Mallick,
Mr. Udayan Dutta.
...for the appellant.
Mr. Saptangshu Basu.
...for the respondent.
Judgment On: January 31, 2011.
Subhro Kamal Mukherjee, J:-
The plaintiff-appellant instituted a suit for eviction before the learned Civil Judge
(Senior Division) at Siliguri, District, Darjeeling. The suit was registered as Title Suit
No.24 of 2006 in the said Court.
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The defendant entered appearance in the suit and delivered his counter-claim along
with the written statement, inter alia, seeking a decree for specific performance of an oral
contract.
The suit was valued at Rs.31, 000/- (Rupees thirty one thousand) only. The
defendant, however, valued his counter-claim at Rs.5, 50,000/- (Rupees five lakh fifty
thousand) only.
The learned Civil Judge by the impugned judgment and decree dated December 23,
2009 dismissed the suit, but the counter-claim of the defendant was decreed on contest.
The plaintiff has come up with this appeal before this Court. The appeal is valued at
Rs.31, 000/- (Rupees thirty one thousand) only. The Additional Stamp Reporter, in his
report dated May 03, 2010, expressed his doubt as to the maintainability of this appeal
before this Court. Accordingly, this appeal has been listed before us for consideration as to
whether the appeal is maintainable before this Court.
Mr. Durgadas Purakayastha, learned advocate appearing in support of this appeal,
submits that as by the impugned judgment and decree, the counter-claim of the defendant
valued at Rs.5, 50,000/- (Rupee five lakh fifty thousand) only has been decreed, appeal has
rightly been filed before this Court.
Section 21(1)(a) of the Bengal, Agra and Assam Civil Courts Act, 1887, in its
application to the State of West Bengal, provides that an appeal from a decree or order of
the learned Civil Judge (Senior Division) shall be to the learned District Judge where the
value of the original suit in which or in a proceeding arising out of which, the decree or
order was made did not exceed one lakh and fifty thousand rupees. Under Section 21(1)(b)
of the said Act the aggrieved party can appeal to the High Court if the value of the original
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suit in which or in a proceeding arising out of which the decree or order was made exceeds
one lakh fifty thousand rupees. (emphasis supplied)
Mr. Purakayastha strenuously argues, with reference to provisions of rules 8A to
Rule 8G of Order VIII of the Code of Civil Procedure, that as the suit was decreed on
counter-claim valued at five lakh fifty thousand rupees, the appeal shall lie before this Court
inasmuch as a counter-claim is, in substance, a cross-suit and under the provisions of rule
6D of Order VII of the said Code, if the suit is dis-continued, dismissed or stayed the
counter-claim may nevertheless be proceeded with independently. Mr. Purakayastha
submits that under Section 21(1)(a) of the said Act, this appeal is maintainable before this
Court as the decree is made in a proceeding, that is, the counter-claim (cross-suit).
We are of the considered opinion that the expression proceeding referred to in
Section 21(1)(a) of the said Act is a proceeding similar to those in a regular suit and not a
proceeding arising out of a suit.
A Full Bench of this Court in the case of Ijjatulla Bhuyan v. Chandra Mohan
Banerjee, reported in (1907) I.L.R. XXXIV Calcutta 954, holds, approving Gulab Khan
v. Abdul Wahab Khan reported in (1904) I.L.R. XXXI Calcutta 365, that where a
plaintiff definitely fixes a certain sum as the amount of his claim, this must be considered as
the value of the original suit and the appeal will lie accordingly.
Therefore, the forum of appeal must be determined according to the value of the
original suit in which the decree was made. For determination of the forum of the appeal
the valuation of the counter claim is not relevant. The forum of the appeal shall be
determined according to the value of the original suit. In the instant case, the value of the
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original suit was Rs.31, 000/- (Rupees thirty one thousand) only. Therefore, the appeal lies
to the learned District Judge and not to this Court.
The appeal is, thus, dismissed as not maintainable. However, this order of dismissal
shall not prevent the appellant to approach the appropriate forum in accordance with law.
The office is directed to return the certified copies of the judgment and decree to
the learned advocate-on-record for the appellant on his furnishing photocopies thereof.
We make no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the learned
advocates for the parties, upon compliance of all formalities.
(Subhro Kamal Mukherjee, J.)
Tarun Kumar Gupta, J.
I agree. (Tarun Kumar Gupta, J.)