Himachal Pradesh High Court
Ramesh Chand vs Om Raj And Others on 19 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.57 of 2017 a/w RSA No.381 of 2017.
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Reserved on: 13.12.2017.
Date of decision: 19th December, 2017.
1. RSA No. 57 of 2017.
Ramesh Chand .....Appellant.
Versus
Om Raj and others ....Respondents.
For the Appellant : Mr.B.M.Chauhan, Advocate.
For the Respondents : Mr.Sanjeev Kuthiala, Advocate.
2. RSA No. 381 of 2017.
Thakur Dass Sharma .....Appellant/Defendant.
Versus
Madan Lal ....Respondent/Plaintiff.
For the Appellant : Mr.Ajay Kumar, Senior Advocate with
Mr.Dheeraj K.Vashisht, Advocate.
For the Respondent : Mr.Prashant Chaudhary, Advocate.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No Tarlok Singh Chauhan, Judge.
RSA No.57 of 2017.
Looking to the nature of order, I propose to pass, it is not at all necessary to refer in detail the facts of each case. Suffice it to say that in RSA No.57 of 2017, the plaintiff filed a suit for permanent prohibitory 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 2 injunction which was registered as Civil Suit No.130 of 2006 in which suit the defendants/respondents filed a counter claim which was registered .
as Counter Claim No. 24 of 2007. The suit and counter claim were tried together and by way of common judgment both the suit and counter claim were partly allowed. The plaintiff was entitled to the relief of permanent prohibitory injunction against the defendants over a part of the land classified as 'gair-mumkin-abadi' measuring 0-06-00 hectares, out of the r to total land measuring 0-10-91 hectares. As regards the counter claim as was observed earlier, the same was partly allowed and the defendants were held entitled to the relief of permanent prohibitory injunction and the plaintiff was restrained from interfering over a portion of the land classified as 'banjar kadeem' measuring 0-04-91 hectares.
RSA No.381 of 2017.
2. Adverting to the facts of RSA No.381 of 2017, the respondent-plaintiff filed a Civil Suit No.191-1 of 2010 against the appellant-defendant for recovery of `2,34,500/-, whereas, the appellant-
defendant filed a Counter Claim No.120-1 of 2016/10 for recovery of `2,85,159/-. The suit of the plaintiff was decreed for an amount of `2,25,975/- with interest @ 15% per annum with quarterly rests from the date of filing of the suit till realization of the whole amount from the defendant, whereas, counter claim filed by the defendant was dismissed with costs.
3. It is not in dispute and rather evidently clear from the grounds of appeal preferred before the learned first appellate Court in both the appeals under consideration i.e. RSA Nos.57 and 381 of 2017 by the ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 3 aggrieved party that such party had questioned decrees that had been passed in both the civil suits as well as counter claims.
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4. Therefore, the moot question in both these appeals is whether single appeal questioning the judgment and decree passed in the civil suit as also counter claim was legally maintainable before the Court below.
5. At this stage, it would be necessary to notice certain
6.
r to judgments of this Court as I am of the considered view that there is inconsistency and no unanimity of opinion on the issue.
A learned Single Judge of this Court while adjudicating RSA No.561 of 2005 titled 'Pohlo Ram versus Jindu Ram and others' decided on 28.10.2005 was dealing with a situation where suit for injunction filed by the plaintiff had been partly decreed by the learned trial Court and the counter claim filed by defendant No.2 therein seeking a decree for declaration was dismissed by the learned trial Court.
7. One of the questions raised before the Court was with regard to maintainability of single appeal in teeth of suit being partly decreed and the counter claim being dismissed and it was observed as under:-
"10......However, on the facts and circumstances of the present case, in my opinion, non-filing of two appeals would be of no consequence, since the lower Appellate Court had accepted the appeal of defendant No.2 only in respect of decree passed by the trial Court, vide which the suit of the plaintiff had been partly decreed. So far as the dismissal of the counter-claim filed by defendant No.2 is concerned, the lower Appellate Court had not granted any relief to defendant No.2 and, as such, the dismissal of the counter claim of defendant No.2 had not been set aside by the learned Additional District Judge while deciding the appeal filed by defendant No.2. In this view of the matter, in my opinion, ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 4 it cannot be said that the appeal filed by defendant No.2 against the judgment and decree dated 25.8.1999, vide which the suit of the plaintiff was partly decreed, was not maintainable merely .
because defendant No.2 had not filed a separate appeal challenging the dismissal of his counter-claim, vide the aforesaid judgment and decree, dated 25.8.1999. Even if defendant No.2 while filing the appeal had challenged the findings of the trial Court not only with regard to the suit of the plaintiff having been partly decreed but also with regard to the dismissal of his counter-
claim, in my opinion, the same would be of no consequence since nothing has come on the record to show that during arguments the learned counsel appearing for defendant No.2 before the lower Appellate Court had also sought any relief against the dismissal of the counter-claim filed by defendant No.2. In these circumstances, the appeal filed by defendant No.2 could be treated as the appeal only against the judgment and decree of the trial Court, vide which the suit of the plaintiff had been partly decreed. This is especially so when the learned Additional District Judge while accepting the appeal filed by defendant No.2 and setting aside the judgment and decree of the trial Court had simply dismissed the suit of the plaintiff and no relief had been granted to defendant No.2 in respect of his counter-claim. The question of filing two appeals would arise only if the defendant was also pressing his counter-claim, which was dismissed by the learned trial Court and the question regarding the counter-claim could be considered only if defendant No.2 had filed two appeals, one against the suit of the plaintiff having been partly decreed and the other against the dismissal of the counter claim. However, in case defendant No.2 is not seeking relief before the lower Appellate Court in respect of the counter-claim, in my opinion, it would not be necessary for him to file two separate appeals against the judgment and decree of the trial Court.
8. It would be noticed that the learned Single Judge without actually going into the question of maintainability proceeded to look at the relief that had been granted by the learned Appellate Court, whereas, the ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 5 question of maintainability of appeal, in my humble opinion, was required to be decided at the threshold before the appeal could actually be .
entertained and could not be made dependent upon the ultimate result of the appeal. It would further be noticed that two judgments referred therein in support of the contention that one appeal was not maintainable had though been noticed but even those decisions were distinguished by according the following reasons:-
r to "11. The two authorities relied upon by the learned counsel for the plaintiff-appellant, in my opinion would have no relevance to the facts and circumstances of the present case. In Premier Tyres Limited versus Kerala State Road Transport Corporation (1993) Supp(2) SCC 146 (supra), the plaintiff had filed a suit for recovery of certain amounts against the defendant whereas the defendant had also filed a suit for recovery of the excess amount paid to the plaintiff. The suit of the plaintiff was partly decreed whereas the suit of the defendant was also decreed in part. The plaintiff filed only one appeal challenging the decree in favour of the defendant and did not file any appeal regarding dismissal of the suit for a part of its claim. The trial Court dismissed the appeal of the plaintiff as barred by res judicata since the finding recorded in the other suit had become final. On the facts and circumstances of the said case, it was held by the Hon'ble Supreme Court that finality of the finding recorded in the connected suit due to non-filing of the appeal precluded the Court from proceeding with the proceedings in the other suit. However, in my opinion, the law laid down in the said authority would have no application to the present case. In the present case, even if the relief claimed by defendant No.2 by way of counter-claim seeking a declaration had been declined by the trial Court and no separate appeal was filed by defendant No.2 challenging the finding of the trial Court in this regard, in my opinion, the same would be of no consequence, since it could not be said, on the facts of the present case, that the finding recorded in this regard precluded the Court from proceeding with the appeal ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 6 against the finding of the trial Court in the main suit. As referred to above, the claim of the plaintiff was for injunction whereas the counter-claim of defendant No.2 was for declaration. Even if the .
claim of defendant No.2 for declaration is not granted in his favour, still the Court is competent to consider the question regarding injunction. Similarly, the law laid down by Madras High Court in Vediammal and others versus M.Kandasamy and others ILR(1997) 1 Madras 1695 (supra)would have no application to the facts of the present case and the plaintiff-
appellant cannot take any benefit from the same."
9. Now, in case the facts of the Premier Tyres's case (supra), are adverted to, it would be noticed that it was observed therein that when two connected suits are tried together and finding recorded in one suit becomes final in absence of appeal, the appeal preferred against the finding recorded in the other suit would be barred by res judicata. The same view was reiterated in Vediammal's case (supra). It is more than settled that a counter claim for all intends and purposes is a suit and has to be separately registered and an independent decree has to be drawn up for the same.
10. Therefore, in my humble opinion, both the decisions as were cited before the learned Court, could not have been distinguished in the aforesaid manner more particularly in the backdrop of somewhat similar question having come up before the same learned Single Judge in Smt.Satya Devi versus Partap Singh and others AIR 2006 HP 75, wherein two suits had been decreed by a common judgment, whereas, appeal was filed along with copy of decree in one suit only along with common judgment, whereas, the memorandum of appeal and copy of the decree passed in other suit were not filed along with memorandum of ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 7 appeal. Yet, this time the same learned Single Judge by placing reliance upon the judgment in Premier Tyres's case (supra) held the appeal to be .
not maintainable and dismissed the same. It shall be apt to reproduce the relevant observations contained in paragraphs 7 to 12 which read thus:-
"7. In view of the provisions of Order 41 Rule 1 CPC, as applicable at the relevant time and in view of the law laid down by the Hon'ble Supreme Court in the aforesaid authority, in my opinion, it would be clear that the appeal which was filed by Smt. Satya Devi before the District Judge, Hamirpur could be treated as an appeal only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi, inasmuch as, only the copy of the decree passed by the trial Court in the suit filed by Smt. Suhli Devi was filed along with common judgment and the memorandum of appeal and the copy of the decree passed by the trial Court in the other suit filed by Partap Singh was not filed along with the memorandum of appeal and the copy of the common judgment.
8. Once it is found that the appeal filed by Smt. Satya Devi before the District Judge was only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi against Milkhi Ram etc. and no appeal was filed against the decree passed by the trial Court in the other suit filed by Partap Singh against Smt. Suhli Devi etc., in my opinion, it would be clear that the decree passed by the trial Court in the civil suit Partap Singh v. Smt. Suhli Devi etc. had become final between the parties, since the decree passed in the suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the appeal was filed only against the decree which was passed in the suit filed by Smt. Suhli Devi.
9. Once it is found that the decree passed by the trial Court in the civil suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the said decree had become final between the parties, the next question that comes up for consideration is as to whether the present regular second appeal filed by Smt. Satya ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 8 Devi against the judgments and decrees of the Courts below would be maintainable, especially when in this Court as well only one appeal has been filed, against the judgment and decree dated .
26.5.2004 passed by the District Judge, whereby the appeal filed by Smt. Satya Devi was dismissed. As referred to above, this appeal shall be treated as the appeal filed by Smt. Satya Devi against the decree passed in favour of Smt. Suhli Devi and not against the decree in the other suit filed by Partap Singh.
10. In Ram Parkash v. Smt. Charan Kaur and Anr. RSA No. 215 of 1987 decided on 18.9.1996, a similar point had arisen before this Court. In the said case, two suits were filed. One suit was filed by Arjan Singh against Ram Parkash, while the other suit was filed by Ram Parkash against Arjan Singh The suit filed by Arjan Singh was dismissed by the trial Court, but the appeal filed by Arjan Singh was allowed by the first appellate Court and the suit filed by Arjan Singh was decreed. On the other hand, the suit filed by Ram Parkash had also been dismissed by the trial Court and the appeal filed by Ram Parkash was also dismissed by the first appellate Court. Ram Parkash challenged the judgment and decree of the first appellate Court, whereby the suit filed by Arjan Singh was decreed but Ram Parkash did not challenge the judgment and decree passed by the Courts below, whereby his suit was dismissed by the Courts below. While hearing arguments in the appeal filed by Ram Parkash it came up for consideration before this Court as to whether the said appeal filed by Ram Parkash was maintainable and whether the appeal was barred by principles of res judicata. After considering the law laid down by the Hon'ble Supreme Court in the case Premier Tyres Limited v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146 : AIR 1993 SC 1202 and other authorities on the subject, it was held by this Court as under:
Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be said that where two connected suits have been tried together and the findings recorded in one of the suit have become final in absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata. This is the ratio of the above cited case law decided by the apex Court of ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 9 the country. Thus, there is absolutely no necessity to go into other aspects of the appeal, especially when on factual side, as detailed above, the decree, not appealed against by the present appellant passed by the first appellate Court, has become final .
between the parties which has created a legal bar for the maintainability of the present appeal whereby the decree passed in the other suit has been assailed.
11. Aggrieved against the dismissal of the appeal by this Court, aforesaid Ram Parkash filed Special Leave Petition before the Hon'ble Supreme Court, The Hon'ble Supreme Court vide detailed order dated 3.2.1997 dismissed the Special Leave Petition and upheld the aforesaid order passed by this Court. The order passed by the Hon'ble Supreme Court, while dismissing the Special Leave Petition, is reported as Ram Parkash v. Smt. Charan Kaur and Anr. . In the said authority, after reproducing the aforesaid concluding paragraph of the judgment passed by this Court, it was held by the Hon'ble Supreme Court that the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 CPC in the appeal against which the petitioner had filed the second appeal. Similar view was taken by the Hon'ble Supreme Court in , holding that the finality of finding recorded in the connected suit, due to non filing of an appeal, precluded the Court from proceeding with the appeal in the other suit.
12. In view of the law laid down by the Hon'ble Supreme Court in the aforementioned authorities and keeping in view the facts and circumstances of the present case, in my opinion, the present appeal filed by Smt. Satya Devi is liable to be dismissed, since Smt. Satya Devi had filed only one appeal against the two decrees, whereby the suits filed by Partap Singh and Smt. Suhli Devi had been decreed by the trial Court and only one appeal was filed against the decree passed in the suit filed by Smt. Suhli Devi and in this manner, the decree passed in the suit filed by Pratap Singh became final between the parties and the findings recorded therein would be res judicata in the appeal filed by Smt. Satya Devi against the decree in the suit filed by Smt. Suhli Devi."
::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 1011. Noticeably, some of the later judgments of this Court support the view taken by the learned Single Judge in Satya Devi's case (supra) .
and reference in this regard can be made to the decision rendered by Co-ordinate Benches of this Court in H.P. State For est Corporation through its Divisional Manager versus Kahan Singh 2017 (1) Him.
L.R. 36 and in Mohan Singh versus Inder Singh & others 2017(1) Him.L.R. 368.
12. From the aforesaid discussion, it is evident that there is an apparent conflict on the same legal proposition in 'Pohlo Ram's case (supra) on the one hand and Satya Devi's case (supra) and the two later decisions in H.P. State Forest Corporation through its Divisional Manager versus Kahan Singh 2017 (1) Him. L.R. 36 and in Mohan Singh versus Inder Singh & others 2017(1) Him.L.R. 368, on the other.
13. That apart, this Court is not in a position to agree or concur with the view taken by the learned Single Judge in 'Pohlo Ram's case (supra) while deciding the question of jurisdiction whereby the said question has been decided on the basis of relief granted by the learned first appellate Court. Whereas, in my humble opinion, the question of jurisdiction which was a pure question of law in the given facts was required to be decided at the threshold at the time of entertaining the appeal itself and could not be made dependent and thereafter answered on the basis of the ultimate result of the appeal.
14. In view of the conflict of decisions, as noticed above and in light of the disagreement expressed by this Court in approving and concurring with the view taken by the learned Single Judge in 'Pohlo ::: Downloaded on - 20/12/2017 23:10:58 :::HCHP 11 Ram's case (supra), the Registry is directed to place the papers before Hon'ble the Acting Chief Justice for constituting a Larger Bench.
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( Tarlok Singh Chauhan ) th 19 December, 2017. Judge.
(krt)
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