Calcutta High Court (Appellete Side)
Deb Kumar Mondal vs Sri Gour Hari Mondal & Ors on 29 April, 2019
Author: I.P. Mukerji
Bench: Md. Nizamuddin, I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Md. Nizamuddin
FAT 310 of 2018
with
CAN 7369 of 2018
with
FAT 309 of 2018
Deb Kumar Mondal
Vs.
Sri Gour Hari Mondal & Ors.
For the Appellant :- Mr. Subir Sanyal
Mr. Sourav Sen
Mr. Sutirtha Das
For the Respondent :- Mr. Saptangsu Basu, Sr. Adv.
Mr. Probal Kr. Mukherjee, Sr. Adv
Mrs. Shebatee Datta
Mr. Asis Debnath
Ms. Ahana Rakshit
Judgement On :- 29.04.2019
I.P. MUKERJI, J.
A very interesting point of law is involved in this appeal. Section 21(1)(a) &
(b) of the Bengal, Agra and Assam Civil Courts Act, 1887 in its application to the State of West Bengal provides as follows:-
"21.1. Appeals from Civil Judge (Senior Division) and Civil Judges (Junior Division).
(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 sixty thousand rupees, and
(b) to the High Court in any other case."
The position is like this. If the value of the original suit did not exceed Rs.1,50,000/-, an appeal from a decree passed therein would lie to the 2 District Judge. If the original suit was valued at more than Rs.1,50,000/- an appeal would lie to the High Court.
The respondents in this appeal filed a suit in the Court of the learned Civil Judge (Senior Division), 3rd Court, Howrah (TS No. 80 of 2007) claiming a declaration regarding their right, title and interest in Premises No. 13 and 14/7, Nabin Senapati Lane, P.S- Shibpur, District - Howrah and for partition thereof. The suit was valued at Rs.1,00,051/-. The defendant appellant filed a counter claim with his written statement claiming 1/4th share mentioned in each of the properties in Schedule A, a declaration that the Deed of Gift dated 14th April, 2007 was void and so on. This counter claim was valued at Rs.10,00,000/-.
On 19th March, 2018 the suit was decreed but the counter claim was dismissed. Against this decree the appellant filed two separate appeals FAT 309 of 2018 and FAT 310 of 2018 in this Court complaining against decree of the suit and dismissal of the counter claim respectively. On 16th August, 2018 this Court dismissed FAT 309 of 2018 on the ground that this Court did not have the jurisdiction to entertain and determine an appeal from a decree in a suit where the original claim was a little over Rs.1,00,000/- but below Rs.1,50,000/-. On 27th August, 2018 the appeal was filed before the learned District Judge at Howrah and numbered as Title Appeal No.205 of 2018. Now, the appellant has filed this application for an order from this Court for transfer of that appeal before the District Judge at Howrah to this Court.
Let us take a look at the law. First let us consider Section 96 of the Code of Civil Procedure, 1908. It provides that unless otherwise stipulated an appeal from every decree passed by a Court in exercise of its original jurisdiction shall lie to the Court authorized to hear appeals. By the Bengal, Agra and Assam Civil Courts Act, 1887, if the original suit was valued at more than Rs.1,50,000/-, the appeal would lie to the High Court. Otherwise, the appeal would lie to the Court of the District Judge. 3 Order VIII Rule 6A was inserted in the Code of Civil Procedure by Act 104 of 1976 with effect from 1st February, 1977. It provided for a counter claim. Rule 6A is in the following terms:
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 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."
Hence this provision was not part of the code when it was originally enacted. Originally, it only contained a right of set off as contained in Order VIII Rule 6.
Some facts need to be noted. Section 96 of the Code says that an appeal shall lie from a decree. It makes no stipulation as to whether one appeal should be filed from a decree in respect of one suit or one appeal from a combined decree in several suits. Let me give an example. Suppose, the subject matter of six suits between X and Y is identical. All six are decreed 4 in favour of X, by one decree. It is possible to file one appeal against this decree. It is also possible to file six several appeals suit-wise. This view is fortified by the proviso to Order XLI Rule 1 which is as follows:
"1. Form of appeal - What to accompany memorandum.- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment:
Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment."
At the time the Bengal, Agra and Assam Civil Courts Act, 1887 was enacted or its amendments made, Order VIII Rule 6A of the Code of Civil Procedure had not been inserted. Note the language in Order VIII Rule 6A(2) of the code. It says that the counter claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgement in the same suit both on the original claim and the counter claim. This is different from the language used in Order VIII Rule 6(2) relating to set off where it was only said that the set off would have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgement in respect of the original claim and the set off. The expression "in the same suit" is missing in Order VIII Rule 6(2). Therefore it is quite plain that although the counter claim was treated as a cross suit, the suit was treated as one calling for a final judgement and decree.
Now, if this is the case what is to be taken as the original claim in the suit? 5 The expression "original claim in the suit" assumes significance when you consider the provision regarding set off. Set off is never considered as a cross suit. It is a claim in the written statement. Although treated as a plaint, the defendant's claim is adjusted against the plaintiff's claim. Set off is never seen as a claim in the real sense of the term but as a cause of action resulting in an ascertained claim which reduces or adjusts the claim of the plaintiff. It is doubtful whether the defendant after adjusting the whole claim of the plaintiff, can claim an additional amount as a decree. English common law did not allow this. In The Andhra Paper Mills Co., Ltd. Vs. Anand Bros. reported in AIR 1951 Madras 783, a division bench of the Madras High Court said:
"Where such a set off is claimed & established, there is in substance a deduction from one demand for money of another cross demand between the same parties with the result that the claim of the Official Liquidator stands liquidated in whole or in part as the case might be. The right of set off is a ground of defence & is required by O. 8, R. 6, C.P.C., to be pleaded as part of the written statement of the deft. If established it is an answer to the pltf.'s claim wholly or pro tanto as the case might be. The deft. if entitled to a set off, is not liable to make satisfaction of the claim made against him or so much of it as equals the amount which he is entitled to set off. If a set off equal to the pltf.'s claim is established, it is an absolute defence entitling the deft. to a decree of dismissal of the suit. The processual law provides that the written statement containing a set off has the same effect as a plaint in a cross suit so as to enable the Ct. to pronounce a final judgment & pass a single decree in respect of both the original claim & the set off; see O. 8, R. 6(2) & O. 20, R. 19, C.P.C. This, however, does not mean that a written statement containing a plea of set off is to be treated as a plaint in all respects & for all purposes."6
But a division bench of our Court thought differently in Rai Harendra Nath Chaudhury Vs. Rai Sourindra Nath Choudhury and Ors. reported in AIR 1942 Calcutta 559. The Court ruled:
"Moreover set-off is a plea in defence, a plea available to the defendant only. In its original and strict sense it is a defence pure and simple, which by adjustment would either wipe off or reduce the plaintiff's claim for money as made in the suit. In its enlarged sense, and that is of statutory creation, it is a defence and a counter-claim combined, defence to the extent of wiping out the plaintiff's claim and a claim by the defendant in the suit itself for the balance."
Section 18 of the Bengal, Agra and Assam Civil Courts Act, 1887 provides that except as otherwise provided the jurisdiction of a District Judge or a Civil Judge (Senior Division) extends to all original suits. It also says that it is subject to Section 15 of the Code of Civil Procedure which says that every suit shall be instituted in the Court of the lowest grade competent to try it. The instant suit was instituted in the Court of the Civil Judge (Senior Division) as that was the court competent to receive suits in respect of the claim made therein. The counter claim was also filed before the same court for the self same reason. Both the claim and the counter claim have to be treated as the original claims. This is because of the fact that the claim and counter claim are treated as cross suits. But although they are described as cross suits the decree that is conceptualised is one decree in one suit. In those circumstances, what is to be treated as the original claim for the purpose of identifying a court to hear the first appeal from the decree? If the suit is treated as one which is decreed by one decree, on the above analysis of the law, there should be only one appeal. Now, how is the original claim to be valued in such a case? Is it the value of the original claim?
7I am of the opinion that there is certainly ambiguity in the law with regard to identification of the original claim in cases where there is a claim as well as a counter claim in the suit. In order to give a purposeful interpretation of Section 21(1) of the 1887 Act, we are of the opinion that both the claims and the counter claims are to be considered as original claims and since only one appeal lies, the higher of the two claims should be treated as the original claim.
A full bench of this Court in the case of Ijjatulla Bhuyan Vs. Chandra Mohan Banerjee reported in (1907) ILR 34 Cal 954 cited at the bar opined that the claim of the plaintiff in the suit must be taken to be the value of the original suit. An appeal would lie accordingly. This was endorsed by the Division Bench of our Court in the case of Dr. Amitabha Datta Vs. Kiran Rasaily reported in 2011 (2) CHN 274.
In Malati Chandra and Ors. Vs. Dilip Kumar Debnath and Ors. a Division Bench judgment of our Court reported in 2008 (2) CHN 1 cited at the bar the issue was completely different. The issue was whether original claim in Section 21 meant the claim or the decretal sum. The plaintiff valued the suit at Rs.30,010/-. The learned Judge in pronouncing his judgment dismissed the suit and valued it at Rs.1,70,000/- directing the plaintiff to pay the differential Court fee. On the basis of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, taking the valuation of the suit at Rs.1,70,000/-, the appeal from the said decree was filed in this Court. The question appears to whether the appeal should have been filed taking the valuation of the suit at Rs.30,010/- or Rs.1,70,000/-. This Court held on an interpretation of the expression "the value of the original suit" in Section 21 of the said Act that such value was Rs.30,010/- and that the appeal lay before the District Judge. The appeal which had been filed in this Court was directed to be returned to that Court. Both these cases are totally irrelevant.
8We note that the full bench decision was rendered much prior to the 1977 amendment of the Code.
On the basis of my analysis there ought to have been one appeal before the High Court complaining against the decree and rejection of the counter claim.
On 16th August, 2018 this Court rightly dismissed the appeal FAT 309 of 2018 on the ground that the suit was valued a little over Rs.1,00,000/- and that the appeal from the decree passed by the subordinate Court lay before the District or Additional District Judge. Liberty was given to the appellant to file the appeal in the proper court. The application connected with it CAN 2353 of 2018 was also similarly dismissed.
What remained in the file of this Court was the appeal from refusal of the Court below to entertain the counter claim in FAT 310 of 2018 along with the connected application CAN 5236 of 2018. The appeal FAT 309 of 2018 is thus wrongly appearing in the list and is deemed to be struck off. After the order dated 16th August, 2018, an appeal numbered as Title Appeal No.205 of 2018 on the same subject matter as the appeal FAT 309 of 2018 was filed before the learned District Judge at Howrah. Thereafter, the appellant in the pending appeal before this Court (FAT 310 of 2018) made the instant application (CAN 7369 of 2018) for transfer of the Howrah Court appeal to this Court and for analogous hearing of that appeal along with the said pending appeal in this Court.
Going by what I have held in this judgement there ought to have been one appeal against the decree. The law treats a decree in this kind of a suit with a counter claim as a decree in a single suit. There is no scope whatsoever of two Courts scrutinizing the same decree.
Here, two appeals in two different Courts are involved. 9 We are of the opinion that this Court has ample powers under Section 24 read with Section 151 of the Code of Civil Procedure to order transfer of the Howrah Court appeal to this Court, for the ends of justice. We order accordingly. The pending appeal FAT 310 of 2018 and the transferred appeal Title Appeal No. 205 of 2018 upon its renumbering shall be heard analogously by this Court as one appeal for all practical purposes. Directions may be sought by the appellant for preparation of one paper book for both the appeals and for vacation of any contrary orders in this behalf in accordance with the rules of this Court.
This transfer is to be effected within four weeks of communication of this order. The Registrar (Administration) of this Court and the Registrar of the Howrah District Court are directed to act in terms of this order. The learned District Judge, Howrah is to ensure that this order is carried out at the earliest. The Advocate-on-record for the appellant will prepare a suitable paper book for the use of this Court in respect of transferred appeal. This application is accordingly disposed of.
The learned Registrar General is requested to send a copy of this order to the learned District Judge, Howrah and the Registrar of that Court. The application CAN 7369 of 2018 is disposed of accordingly.
(I.P. MUKERJI, J.) Md. Nizamuddin, J:-
I fully agree with the view taken by my brother Hon'ble Justice I. P. Mukerji and the judgment proposed to be delivered by him. However, I would like to add my own reasons in support of such view.
In my view where two appeals are proposed to be filed from a single judgment and decree one before the District Judge and one before the High Court in that event both the appeals should be filed before the High Court.10
On careful reading and after taking into consideration the relevant provisions of law i.e. Section 96 and Order VIII Rule 6A of the Code of Civil Procedure and Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 and also the aforesaid decisions cited by the parties in course of hearing I would like to hold that the aforesaid provisions of law and the decisions citied by the parties do not contemplate a situation like the present one.
Peculiar facts and issues involve in the present case is that two appeals proposed to be filed from one single Judgment and decree partly pertaining to the original suit and partly pertaining to the counter claim and as per pecuniary value against the part of the decree pertaining to the original suit appellate forum is the District Judge and part of the decree pertaining to counter claim appellate forum is High Court. Now the question is whether two appeals should be filed separately before two fora or before one forum or if one forum then before which appellate forum before the District Judge or before the High Court?.
My answer to this question is in view of the facts involved in the present case, both the appeals should be filed before the High Court to avoid multiplicity of appellate forum and conflicting decision and in the interest of justice.
In my view both the appeals should be filed before the High Court since there is no bar for the High Court in exercising its suo moto power under Section 24 and inherent power under Section 151 of the Code of Civil Procedure to get the appeal transferred to it from the sub-ordinate Court apart from the fact that one appeal arising from part of the same judgment and decree pertaining to the counter claim is already pending before the High Court and the District Court cannot hear the said appeal because of pecuniary bar.11
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Md. Nizamuddin, J.)