Partly allowed

Bhagwat Prasad (Died) through Legal Hrs.Gannu Ram Sahu v. Samaru Ram

Chhattisgarh HC3 Dec 2019SA/458/2006

Case brief

AI extract

What is this about?

In this second appeal, the High Court held that the first appellate court was justified in revoking the specific performance decree. The court ruled that due to unified proceedings, non-valuation of the counter-claim was a procedural irregularity curable by additional fee, not a bar to hearing the consolidated appeal. The appellate decree was modified to allow the plaintiff to pay the arrears with

What did the court decide?

The judgment and decree of the first appellate Court are modified; the appellant is directed to pay additional court fee of ₹250/- within 45 days to make the decree operative.

Bhagwat Prasad (Died) through Legal Hrs.Gannu Ram… — Specific Performance | Chhattisgarh HC (2019)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.458 of 2006

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Bhagwat Prasad (Dead) through his LR's

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Gannu Ram Sahu, aged about 58 years, S/o late Bhagwat Prasad Sahu, R/o Village Khaira, Tahsil Kota, Distt. Bilaspur (CG)

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Smt.Bichit Bai, aged about 40 years, D/o Late Bhagwat Prasad Sahu, W/o Baijnath Sahu, R/o Village Hadigaon, Tahsil Lormi, Distt. Mungeli (CG)

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Smt.Jamuna Bai, aged about 35 years, D/o Late Bhagwat Prasad Sahu, W/o Bhanu Pratap Sahu, R/o Village Pendarwa, Tahsil Bilha, Distt. Bilaspur (CG)

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Smt. Sarswati Bai, aged about 33 years, D/o late Bhagwat Prasad Sahu, W/o Jamuna Prasad Sahu, R/o Village Seoni, Tahsil Marwahi, Distt. Bilaspur (CG)

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Binod Kumar Sahu, aged about 30 years, S/o Late Bhagwat Prasad Sahu, R/o Village Khaira, Tahsil Kota, Distt. Bilaspur (CG)

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---- Appellants

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Versus

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Samaru Ram S/o late Tularam Sahu, Aged 51 years, ---- Respondent/Plaintiff

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Saharu Ram S/o Late Tularam Sahu, Aged 44 years,

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Rambahoran S/o Late Tularam Sahu, Aged 38 years All R/o Village Khaira, Tah. Kota, Distt. Bilaspur (CG)

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State of Chhattisgarh, Through Collector, Bilaspur (CG)

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---- Respondents

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For Appellants/LR's of Defendant No.1:

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 Mr.Ravindra Agrawal, Advocate

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For Respondent No.1/plaintiff:

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 Mr.Arvind Dubey, Advocate
For Respondent No.4: Mr.Ravi Bhagat, Dy.G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment On Board

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03/12/2019

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This second appeal preferred by appellant/defendant No.1 under Section 100 of the CPC was admitted for hearing by formulating the following substantial

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question of law: -

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“Whether the first appellate Court was
justified in reversing the judgment and
decree of the trial Court granting decree
of specific performance of the contract and
declaration of title in favour of defendant
No.1 (on his counter claim) by recording
perverse finding in light of the fact that
plaintiff did not question the decree of
specific performance of the contract
granted in favour of defendant No.1
including no court fee for challenging the
decree of specific performance was paid ?

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(For the sake of convenience, parties
hereinafter will be referred as per their
status shown and ranking given in the plaint
before the trial Court.)

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Plaintiff-Samaruram filed a suit for declaration of title and permanent injunction, in which defendant No.1 also filed counter-claim and claimed decree of specific performance of the contract in addition to declaration of title on the basis of adverse possession. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 12.11.2003, dismissed the suit of the plaintiff for declaration of title and permanent injunction and allowed the counterclaim filed by defendant No.1 granting decree of specific performance of the contract in his favour. On appeal being preferred by the plaintiff, the first appellate Court granted decree for declaration of title in favour of the plaintiff and set aside the decree of specific performance of the

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contract, against which, this second appeal under
Section 100 of the CPC has been preferred by the
original appellant/defendant No.1, in which
substantial question of law has been formulated
which has been set-out in the opening paragraph of
this judgment.

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Mr.Ravindra Agrawal, learned counsel for the

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appellants/legal representatives of defendant NO.1, would submit that the first appellate Court would not have interfered with the decree granted by the trial Court in view of appeal not being preferred before the first appellate Court along with court fee of ₹ 250/- against the decree of specific performance of the contract, as such, decree for specific performance of the contract has become final for non-payment of court fee as well as for not preferring the appeal against the decree granting counter-claim in his favour, as such, the decree to that extent deserves to be set aside.

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On the other hand, Mr.Arvind Dubey, learned counsel for respondent No.1/plaintiff, would submit that since suit and counter-claim proceedings being unified proceedings, therefore, the plaintiff filed consolidated appeal and defendant No.1 did not take any objection and took a calculated chance and when the appeal turned against him, he invented a new ground, which cannot be entertained and as such,

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the appeal deserved to be dismissed.

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I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the record with utmost circumspection.

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Perusal of the records would clearly show that in a suit filed by the plaintiff, defendant No.1 laid counter-claim claiming decree for specific performance of the contract. The trial Court while dismissing the suit of the plaintiff allowed the counter-claim granting decree for specific performance of the contract in favour of defendant NO.1, which the plaintiff assailed by filing first appeal before the first appellate Court. That appeal was consolidated appeal claiming setting aside the judgment and decree of the trial Court dismissing the plaintiff's suit for declaration of title and granting the defendant's counter-claim for specific performance of the contract.

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At this stage, it would be appropriate to notice Order 20 Rule 19 of the CPC which states as under:-

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“19. Decree when set-off or counter-claim
is allowed.-(1) Where the defendant has
been allowed a set-off or counter-claim
against the claim of the plaintiff, the
decree shall state what amount is due to
the plaintiff and what amount is due to the
defendant, and shall be for the recovery of
any sum which appears to be due to either
party.

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(2) Appeal from decree relating to set-off

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or counter-claim.- Any decree passed in a
suit in which a set-off or counter-claim is
claimed shall be subject to the same
provisions in respect of appeal to which it
would have been subject if not set-off or
counter-claim had been claimed.

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(3) The provisions of this rule shall apply
whether the set-off is admissible under
Rule 6 of Order VIII or otherwise.”

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In the matter of Sultan Singh and others v. Rachhpal and other 1, the Division Bench of the Pepsu High Court has held that in a case where against two separate decrees, one consolidated second appeal was filed from both the decrees, whereas two appeals ought to have been preferred but no objection to procedure was taken by respondent and that mistake was also not detected by the officer when appeals were filed, the procedure was held to be irregular.

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The Kerala High Court in the matter of Pampara Philip v. Koorithottiyil Kinhimohammed 2 has held that where a counter-claim by defendant is dismissed and claim of the plaintiff is allowed, the defendant need not file a separate appeal for his counter-claim in addition to the regular appeal against the decree, but a single appeal before the

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High Court challenging both findings is

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maintainable. It was further held that suit and
counter-claimproceedingsbeingunified

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2 AIR 2007 KERALA 69

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1 AIR 1953 PEPSU 129

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proceedings, valuation of appeal would be
combination of valuation of suit and valuation of
counter-claim.

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The principle of law laid down by the Pepsu High Court in Sultan Singh (supra) was followed with approval by the Bombay High High in the matter of The State of Maharashtra, through Collector,

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Yavatmal v. Krishnaawatar Daulatsingh Madan3.

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Reverting to the facts of the present case in light of legal position, in the instant case, the plaintiff while preferring first appeal before the first appellate Court valued the appeal for valuation of the suit, but did not include valuation of counter-claim and did not pay court fee of ₹ 250/- for counter-claim. In fact, he intended to challenge the judgment & decree of the trial Court dismissing the suit and granting counter-claim as a whole, but erroneously and inadvertently did not value the appeal for valuation of counter-claim, but after being noticed, defendant No.1 also did not raise any such objection and participated in hearing of the appeal and when decree was passed against him, the issue of improper valuation of appeal qua decree for specific performance of the contract has been raised and taking the plea that since court fee has

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3 2012 SCC OnLine Bom 324

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not been paid and appeal has not been valued for

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counter-claim and argument is that decree of
counter-claim has become final, which cannot be

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entertained in view of the provisions contained in
Order 20 Rule 19 of the CPC as it has already been
held by the Kerala High Court in Pampara Philip
(supra) that suit and counter-claim proceedings
being unified proceedings, valuation of appeal
would be combination of valuation of suit and
valuation of counter-claim, as such, non-filing of
separate appeal by the plaintiff questioning the
decree of counter-claim, it cannot be held that
decree for specific performance of the contract has
become final against the plaintiff. It is only a
procedural irregularity.

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Since the appeal was heard on merits and final judgment has already been delivered and no objection was raised by defendant No.1 before the first appellate Court and he participated in the appeal proceedings without protest and demur, he cannot be permitted to raise such a point before the second appellate Court. It is true that the appeal filed was not valued for decree of specific performance of the contract, but that would not make the decree invalid as consolidated appeal was entertained by the first appellate Court. However, the plaintiff would pay additional court fee of ₹

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250/- for counter-claim before the first appellate
Court as valued before the trial Court within 45
days from today and decree of the first appellate
Court would be operative subject to payment of
court fee as held hereinabove.

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The judgment and decree of the first appellate Court is accordingly modified. No cost(s). The appellate decree be drawn.

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 Sd/-

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(Sanjay K. Agrawal)
 Judge

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B/-

Bhagwat Prasad (Died) through Legal Hrs.Gannu Ram Sahu v. Samaru Ram

Case brief

What is this about?

What did the court decide?

Bhagwat Prasad (Died) through Legal Hrs.Gannu Ram Sahu v. Samaru Ram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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