Himachal Pradesh High Court
Reserved On: 20.8.2024 vs Roshan Lal on 20 September, 2024
Author: Virender Singh
Bench: Virender Singh
12024:HHC:8851 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 391 of 2008 Reserved on: 20.8.2024 .
Decided on: 20.9.2024 Om Parkash & others ... Appellants Versus Roshan Lal ...Respondent ___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Appellants: Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate.
For the Respondent : Mr. Ajay Sharma, Senior Advocate, with Mr. Atharv Sharma, Advocate.
Virender Singh, Judge The appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 14.5.2008, passed by the Court of learned District Judge, Hamirpur, H.P. (hereinafter ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 22024:HHC:8851 referred to as 'the First Appellate Court'), in Civil Appeal No. 7 of 2005, titled as, 'Roshan Lal versus Om Parkash & others'.
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2. Vide judgment and decree, dated 14.5.2008, the learned First Appellate Court had allowed the appeal, preferred by the respondent, against the judgment and decree, dated 29.10.2004, passed by the Court of learned Civil Judge (Junior Division) (I), Hamirpur, H.P. (hereinafter referred to as 'the learned trial Court'), in Civil Suit No. 232 of 1996, titled as, 'Roshan Lal versus Hans Raj (deceased) through LRs' and Counter Claim No. 195 of 2004.
3. The learned First Appellate Court, vide judgment and decree, dated 14.5.2008, had granted the following relief to respondent Roshan Lal:
"In view of my findings on point No. 1 above, the present Civil Appeal is accepted, without costs, and the impugned judgment and decree are set aside. Consequently, the suit of the plaintiff is decreed restraining the defendants from causing any interference or raising any construction in Khasra No. 75/1, measuring 15 marlas, which finds mentioned in Ext. P-1 or Ext. D4, until Khasra No. 75 is ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 32024:HHC:8851 partitioned by metes and bounds. As such, the counter-claim of the defendants stands dismissed, without costs."
4. The learned trial Court, vide judgment and .
decree, dated 29.10.2004, had dismissed the suit filed by respondent Roshan Lal and partly decreed the counter claim, filed by the present appellants.
5. For the sake of convenience, the parties, to the present lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
6. Brief facts leading to filing the present appeal, before this Court, may be summed up, as under:
Plaintiff Roshan Lal had filed the suit for permanent prohibitory injunction, restraining the defendant from raising any sort of construction or interfering, in any manner, over the land, bearing Khata No. 71 min, Khatauni No. 77 min, Khasra No. 75 area 7K-13M, shown as Khasra No. 75/1, area 15 Marla, situated in Tika Bajauri, Tappa Bajauri, ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 42024:HHC:8851 Tehsil and District Hamirpur (H.P.) (hereinafter referred to as 'the suit land').
6.1 In addition to this, a prayer has been made .
that, in case, defendant succeeds in raising any construction over the suit land, then, decree for possession, by way of demolition of such construction, may kindly be passed, in favour of the plaintiff. The defendant is stated to be totally stranger to the suit land, as well as, the land, which is Abadi Tika.
6.2 It has been averred by the plaintiff that the defendant has threatened the plaintiff to dispossess him from the suit land and when, the requests, made by the plaintiff, fell on deaf ears of the defendant, then, he filed the present suit, seeking relief, as claimed in the suit.
7. When, put to notice, the suit has been contested by the defendant, by filing the written statement, in which, he has taken preliminary objections that suit is not maintainable; that ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 52024:HHC:8851 plaintiff has no cause of action or locus standi to file the suit; that the defendant alongwith his family members, are owners in possession of the land, .
measuring 6 marlas in the Abadi Tika, bearing Khasra No. 75, since the time of his forefathers;
that the suit is bad for non-joinder of necessary parties; plaintiff is estopped from filing the suit by his acts and conduct; plaintiff has not approached the Court with clean hands and suppressed the material facts; and Rapat Rojnamcha No. 676, dated 4.8.1993 and the order of District Collector, Hamirpur, H.P. in case No.4/91, dated 22.8.1991, qua the Tika Abadi, is without jurisdiction, null and void and not binding upon the rights of the defendant, as well as, his mother Smt. Indro Devi.
7.1 On merits, the suit has been contested by the defendant asserting his possession over the land, measuring 6 marlas. According to the defendant, there is no partition of khasra No. 75 by competent Court of law, at any point of time. Hence, order of ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 62024:HHC:8851 District Collector dated 22.8.1991, in case No. 4/1991 and Rapat Rojnamcha No.676, dated 4.8.1993, passed by the District Collector, .
Hamirpur, reflecting the division of tatima regarding the possession of right holders, is stated to be null and void and without any jurisdiction. Other contents have also been denied.
8. On the basis of above, the defendant has sought declaration to the effect that the order dated 22.8.1991, in case No. 4/91 and the subsequent Rapat Rojnamacha No. 676, dated 4.8.1993, regarding Tatima division/ partition by District Collector, Hamirpur, H.P., be declared as null and void and without any jurisdiction, and not binding upon the rights of the defendant.
9. The plaintiff has filed the replication, denying the preliminary objections, as well as, contents of the written statement, by virtue of which, suit has been contested. The counter claim filed by the ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 72024:HHC:8851 defendants has separately been registered as Counter Claim No. 195 of 2004.
10. The stand, as taken by the defendant, has .
been contested on the ground that Abadi Tika stands partitioned and the plaintiff is in exclusive possession of the land, bearing khasra No. 75/1.
11. From the pleadings of the parties, the following issues were framed by the learned trial Court, on 7.6.2002:
1. Whether the plaintiff is entitled for the relief of permanent injunction and in alternative for possession? OPP
2. Whether the suit is joint amongst the parties to the suit and that order dated 22.8.1991 in case No. 4/91 & Rapat Rojnamcha No. 676 Dt. 4.8.1993 are illegal, null and void, as claimed? OPD
3. Relief.
12. Thereafter, parties to the lis were directed to adduce evidence.
13. After closure of evidence, the learned trial Court heard the learned counsel appearing for both the parties and dismissed the suit of the plaintiff ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 82024:HHC:8851 and partly decreed the counter claim, set up by the defendants, by declaring the counter claimant alongwith other Tikadrans of Tika Bajauri Khas, as .
joint owners in possession of the land comprised in Khata No. 71, Khatauni No. 77 min., Khasra No. 75 area 7 Kanal 13 marlas, shown as Khasra No. 75/1 measuring 15 Marlas, situated in Tika Bajauri, Tappa Bajauri, Tehsil and District Hamirpur, H.P.
14. Against the said judgment and decree, the plaintiff had filed Civil Appeal No. 7 of 2005, titled as, 'Roshan Lal versus Om Parkash & others' and the same was allowed by the learned First Appellate Court, vide judgment and decree, dated 14.5.2008.
15. Feeling aggrieved from the said judgment and decree, the present appeal has been preferred, before this Court, by the defendants.
16. The judgment and decree, passed by the learned First Appellate Court, has been assailed on the ground that the learned First Appellate Court has not properly considered the pleadings, as well ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 92024:HHC:8851 as, documentary evidence and has ignored the fact that defendants are also having share in the Abadi Tika.
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17. It has further been pleaded that the District Collector, Hamirpur has partitioned the land without there being any application for partition or hearing the effective parties and affording an opportunity of being heard, as such, the said order is stated to be null and void and not binding upon the rights of the parties.
18. In addition to this, another ground, upon which, the findings of learned First Appellate Court, have been assailed, is that jurisdiction of the revenue Court is barred under Sections 5 and 138 of the Himachal Pradesh Land Revenue Act, to pass any order regarding partition of the abadis.
19. On the basis of grounds of appeal, Mr. N.K. Thakur, Senior Advocate, assisted by Mr. Divya Raj Singh, Advocate has prayed that the present appeal may kindly be accepted, by setting aside the ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 102024:HHC:8851 judgment and decree, passed by the learned First Appellate Court.
20. Per contra, Mr. Ajay Sharma, Senior .
Advocate, assisted by Mr. Atharv Sharma, Advocate, appearing for the respondent has supported the judgment and decree, passed by the learned First Appellate Court and has prayed that the appeal sans merit and the same may kindly be dismissed.
21. The present appeal has been admitted by this Court, vide order dated 18.8.2008, on the following substantial questions of law:
"1. Whether the site of the village/the area of Tika Abadi Deh cannot be partitioned by the revenue Court, and any order of partition passed by the Collector, is in contravention of Sections 5 and 138 of the HP Land Revenue Act?
2. What is the effect of non-production of the impugned order of partition by the Collector and subsequent Rapat Roznamcha entered on the basis of impugned order of the Collector is inadmissible and cannot be legally taken into consideration?
22. Thereafter, on 20.8.2024, the following additional substantial question of law was framed:
"Whether the single appeal, which was filed, before the learned First Appellate Court, against the judgment and decree, passed by the learned trial Court, whereby the suit has been dismissed and the counter claim has been partly decreed, was ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 112024:HHC:8851 maintainable, in view of the decision of this Court in case 'Ramesh Chand versus Om Raj and others, reported in 2022 (2) SLC 1145?
23. Since, the additional substantial question of .
law, framed on 20.8.2024, goes to the root of the case, as such, the said substantial question of law is required to be decided first.
24. Perusal of the record shows that vide judgment and decree, dated 29.10.2004, the learned trial Court has decided Civil Suit No. 232 of 1996, as well as, Counter claim, No. 195 of 2004, and against the said judgment and decree, the unsuccessful plaintiff has filed only one appeal, before the learned First Appellate Court. Vide judgment and decree dated 14.5.2008, the learned First Appellate Court has accepted the appeal, by reversing the judgment and decree, passed by the learned trial Court and suit of the plaintiff was decreed, restraining the defendants from causing any interference or raising any construction over the ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 122024:HHC:8851 suit land and the counter claim, filed by the defendants, was ordered to be dismissed.
25. As per provisions of Order VIII Rule 6(A) to .
6(G) of the CPC, a defendant, in a suit, may, set up, the counter-claim against the claim of the plaintiff regarding 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.
26. As per the provisions of Order VIII Rule 6(A) to 6(G) of the CPC, such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court as the effect of the cross-suit and Counter Claim will be treated as the plaint, for which, the plaintiff has right to file written statement, and when counter claim has been filed, the Court will pronounce the final judgment, not only in the suit filed by the plaintiff, but, in the suit filed by the ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 132024:HHC:8851 defendant, i.e. the Counter claim. The provisions of Order VIII Rule 6(A) to 6(G) of the CPC are reproduced, as under:
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"Order VIII Written statement, set off and Counter Claim xxx xxx xxx 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 according to the defendant against the plaintiff either before or after the filing of the suit, but before 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:
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. 6B. Counter-claim to be stated- Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.
::: Downloaded on - 20/09/2024 20:39:36 :::CIS142024:HHC:8851 6C. Exclusion of counter-claim- Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter- claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, .
apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.
6D. Effect of discontinuance of suit- If in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter- claim may nevertheless be proceeded with.
6E. Default of Plaintiff to reply to counter-claim- If the plaintiff makes default in putting in reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him or make such order in relation to the counter- claim as it thinks fit.
6F. Relief to Defendant where counter-claim succeeds-
Where in any suit a set-off or counter-claim is established as defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance.
6G. Rules relating to written statement to apply-The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter- claim.
27. It is no longer res-integra that the counter claim is the cross suit and dismissal of the counter claim is a decree and the same is appealable.
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28. The scope and nature of the Counter Claim have elaborately been discussed by the Hon'ble Supreme Court in Jag Mohan Chawla & another .
versus Dera Radha Swami Satsang & others, reported in (1996) 4 Supreme Court Cases 699.
Relevant paragraph-5 of the judgment is reproduced as under:
"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 6-A(1) provides that 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 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) amplified that such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 162024:HHC:8851 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 Chunilal 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 partners 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 counter-claim. 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 a counter- claim for settlement of their claim and defence in written statement 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, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right on the defendant to set up a counter-claim independent ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 172024:HHC:8851 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 parties 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 or 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 filing the written statement expires. The defendant may set up 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 needles 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-
::: Downloaded on - 20/09/2024 20:39:36 :::CIS182024:HHC:8851 claim. The High Court directed to examine the identity of the property. Even otherwise, it being an 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."
29. Similar view has again been reiterated by a three judges Bench of Hon'ble Supreme Court in Satyender & others versus Saroj & others, reported in 2022 Live Law (SC) 679. Relevant para-
16 of the judgment is reproduced as under:
"16. The other finding of Second Appellate Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is, however, correct and is based on right interpretation of Order VIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear that they had never raised any claim on Killa No. 6//18 or Killa No. 23. The defendants in their written statement while denying the rights of the plaintiffs on the land of which particulars had been given by the plaintiffs, quite ingeniously inserted the two Killa Nos.6//18 and 23, setting a counter- claim on these plots. The Trial Court and the First Appellate Court while dismissing the plaintiffs' suit had allowed this claim for without assigning any reasons. In fact, this counter claim ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 192024:HHC:8851 which was raised by the defendant is barred under Order VIII, Rule 6A of the CPC. Order VIII, Rule 6A reads as under:-
[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 counterclaim.
(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 A counter claim can be set up only "against the claim of the plaintiffs". Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs. It is true that a counter claim can be made by the defendant, even on a separate or independent cause of action (Jag Mohan Chawla & Anr. v.
Dera Radha Swami Satsang & Ors.).
The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 202024:HHC:8851 defendant has delivered his defence or before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the present case the counter claim was not against the plaintiffs. Moreover, as the plaintiffs .
had not claimed any right over the property and the Killa Nos. 6//8 and 23 are not even a part of the suit property described in the plaint by the plaintiffs. Despite the same, such a claim has been allowed against the plaintiffs. In fact, we do not find on record any reply submitted by the plaintiffs against the counter claim. To be fair, such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC. Suffice it to state here that the counter claim set up by the defendants has been rightly rejected by the High Court."
30. The learned trial Court, in this case, had dismissed the suit of the plaintiff, as prayed for, and the counter claim, set up by the defendants, had been partly decreed.
31. Perusal of the record shows that the learned trial Court has decided Civil Suit No. 232 of 1996 and Counter Claim No. 195 of 2004, vide judgment and decree, dated 29.10.2004. It has specifically been ordered by the learned trial Court that the decree sheet be prepared accordingly in the Civil Suit, as well as, in the Counter Claim. The Counter ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 212024:HHC:8851 Claim, for all intents and purposes, as per the settled proposition of law, is a separate suit. In fact, two decrees have been passed by the learned trial .
Court and the plaintiff, aggrieved from the judgment and decree, passed in the Counter Claim No. 195 of 2004, as well as, the judgment and decree, passed in Civil Suit No. 232 of 1996, was required to file two separate appeals. However, instead of filing two appeals, he had preferred only one appeal, before the learned First Appellate Court, bearing Civil Appeal No. 7 of 2005, challenging the judgment and decree, passed by the learned trial Court in Civil Suit and in Counter Claim.
32. The Division Bench of this Court, in Ramesh Chand versus Om Raj, reported in 2022(2) Shim.
L.C. 1145, has enumerated certain principles.
Relevant paragraph-42 of the judgment is reproduced as under:
"42. The principles deducible from the adore-discussed law can be summarized as follows:::: Downloaded on - 20/09/2024 20:39:36 :::CIS
222024:HHC:8851
(i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved .
party;
(ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal.
(iii) When two suits though not consolidated but are decided by a common judgment, resulting into preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals;
(iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals;
(v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of res-judicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal;
(vi) When however, two appeals are filed against a common, judgment passed by the trial Court, both by the plaintiff and the defendant, and are disposed of by ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 232024:HHC:8851 the first appellate Court by modifying/ reversing/affirming judgment of the trial Court, the aggrieved party, would be required to challenge both by two separate appeals, in absence of which, non- filing of appeal against one shall attract bar of the .
principles of res-judicata against another.
(vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res-judicata and such dismissal would satisfy the requirement of appeal being heard and finally decided on merits ' in a former suit' for the purpose of attracting principles of res-judicata."
33. Learned Senior Counsel, appearing for the respondent, has made a futile attempt to carve out an exception, by relying upon the decision of the Apex Court in case titled as, Ramnath Exports Private Limited versus Vinita Mehta & another, reported in (2022) 7 Supreme Court Cases 678.
34. With due respect to the law laid down, in the said case, the same is not applicable to the facts and circumstances of the present case, as in Ramnath's case (supra), the application, seeking permission to file the single appeal, assailing the ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 242024:HHC:8851 common judgment, was pending and the High Court had decided the appeal, by virtue of which, two suits were decided by the learned trial Court, .
without deciding the said application.
35. Going to the facts and circumstances of the present case, admittedly, in this case, such prayer had not been made, before the learned First Appellate Court. As such, non-filing of the separate appeal, against the judgment and decree, passed by the learned trial Court, attracts the principle of res-
judicata, and the learned First Appellate Court, cannot interfere with the findings of the learned trial Court, vide judgment and decree dated 14.5.2008, by virtue of which, suit of the plaintiff had been decreed, whereas, counter claim set up, by the defendants, had been dismissed.
36. In such situation, the additional substantial question of law, framed on 20.8.2024, is decided, in affirmative, in favour of the appellants. Although, other substantial questions of law have also been ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 252024:HHC:8851 framed by this Court, but, since the above-
mentioned substantial question of law has been decided, in affirmative, in favour of the appellants, .
as such, other substantial questions of law have become redundant.
37. Consequently, the present appeal is liable to be allowed by setting aside the judgment and decree, passed by the learned First Appellate Court, and by restoring the judgment and decree, passed by the learned trial Court.
38. Ordered accordingly.
39. Decree-sheet be prepared accordingly.
40. The pending application(s), if any, are also disposed of.
41. Record be sent down.
(Virender Singh) Judge September 20, 2024 (Kalpana) ::: Downloaded on - 20/09/2024 20:39:36 :::CIS 262024:HHC:8851 .
r to ::: Downloaded on - 20/09/2024 20:39:36 :::CIS