Counter-Claim Culminates In Composite Decree; Single Appeal Is Maintainable Against Common Judgment Rendered In Suit & Counter-Claim: Madras High Court

The High Court was considering a Second Appeal directed against the judgment of the Principal Subordinate Judge confirming the decree of the District Munsif Court.

The Single Bench of Justice A.D. Maria Clete held, “There could be no quarrel that a single appeal is maintainable against a common judgment rendered in a suit and a counter-claim. Though a counter-claim is treated as a cross-suit under Order VIII Rule 6-A CPC, it culminates in a single judgment and a composite decree, and therefore does not necessitate multiplicity of appeals. However, the maintainability of a single appeal does not absolve the appellant of the statutory obligation to value the appeal correctly and to pay court-fee in respect of all adverse reliefs granted under the decree. The right of appeal being a statutory right, it can be exercised only in the manner prescribed by law, including strict compliance with the provisions relating to court-fee.”

M/s.C.B.Geeth Sanchitra represented the Appellant, while Advocate Dinesh represented the Respondent.

Factual Background

The first defendant was the owner of the suit-scheduled property. In the year 1997, the plaintiff entered into an agreement of sale with the first defendant for a total sale consideration of Rs 60,000, under which a sum of Rs 30,000 was paid as an advance. The time stipulated for completion of the sale was three years. As the first defendant evinced reluctance to receive the balance sale consideration and to complete the sale transaction, the plaintiff instituted a suit on the file of the District Munsif Court, Tiruppur, seeking specific performance of the contract. The said suit was decreed. Thereafter, the plaintiff filed an execution petition to obtain the sale deed through the court.

While the execution petition was pending, the defendants attempted to trespass onto the suit property. Though the plaintiff lodged a police complaint, no action ensued. Consequently, the plaintiff filed the suit for a permanent injunction. The first defendant was set ex parte in the suit. The trial Court, upon framing the necessary issues, dismissed the suit and allowed the counter-claim by cancelling the decree and granting an injunction against the plaintiff and the first defendant. Aggrieved thereby, the plaintiff preferred an appeal, which was also dismissed. Hence, the Second Appeal came to be filed before the High Court.

Reasoning

While dealing with the issue of whether a single appeal is maintainable against a common judgment passed in a suit and counter-claim, the Bench explained that a single appeal is maintainable against a common judgment rendered in a suit and a counter-claim. On a perusal of the facts of the case, the Bench noted that the plaintiff preferred only one First Appeal, and the decree depicted that the plaintiff, as appellant, paid court-fee both in respect of the relief claimed in the plaint and the relief granted on the counter-claim, aggregating to Rs.5,273. Consequently, the Bench held that the single First Appeal filed by the plaintiff was procedurally maintainable and competent in respect of both the suit and the counter-claim.

The Bench further stated, “Once a comprehensive appeal under Section 96 CPC has been entertained and decided, any procedural objection as to whether two separate appeals ought to have been filed instead of a single appeal becomes academic and inconsequential, and cannot be permitted to be reopened in a Second Appeal under Section 100 CPC, particularly in the absence of any demonstrated prejudice or failure of justice. Accordingly, the single First Appeal filed by the plaintiff/appellant is held to be valid, and this substantial question of law is answered.”

The Bench noted that the third defendant, being a prior purchaser and not a party to the suit, was legally entitled only to a declaration that the decree passed therein was not binding on her and on the second defendant, her husband, and not to a decree cancelling the said decree. The judgment and decree passed by the Courts below on the counter-claim of the second and third defendants, insofar as they canceled the decree, were modified to that limited extent, and it was declared instead that the decree was not binding on the second and third defendants. This modification, according to the Bench, caused no prejudice to the appellant.

The Bench was of the view that the suit was one for bare injunction founded on the decree, which was confined to specific performance and did not direct delivery of possession. The execution petition was filed only forthe execution of the sale deed, and the plaintiff never obtained possession of the suit property. “A person not in possession is not entitled to an injunction to protect possession. There is also no evidence to show that the plaintiff was in possession of the suit property. Consequently, the concurrent findings of the Courts below refusing the relief of injunction do not warrant interference”, it held.

Thus, holding that the findings recorded by the Courts below were well reasoned, supported by the evidence on record, and in accordance with law, the Bench dismissed the Second Appeal.

Cause Title: K.Kandasamy v. P.Natarajan (Case No.:S.A.No.789 of 2014)

Appearance

Appellant: M/s.C.B.Geeth Sanchitra, Advocate M.Guru

Respondent: Advocate Dinesh

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