# Jyoti @ Heera v. Omwati @ Sato & Ors

- **Citation:** (2024) 5 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Matters Under Article 227 No. 3470 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jyoti-heera-v-omwati-sato-ors-52111
- **Pages:** 12

## Headnote

Civil Law - Civil Procedure Code,1908 -
Section 9 - O. 8 - Rule 6-A - O. 20 - Rule
5- O. 20 R. 19 (1) and (2) - Limitation Act,
1963 - Section 14 - Petitioner instituted a
suit for permanent prohibitory injunction -
On suit property, relief claimed, valuation
declared was Rs. 50 lacs - Respondent nos.
1 & 2 filed written St.ment, counter claim,
valuation was declared at Rs. 16 lacs - Trial
court dismissed the suit, decreed the
counter claim of respondents - Petitioner
filed first appeal before High Court, on the
ground that valuation being Rs. 50 lacs, it
executed the pecuniary limit of jurisdiction
of District Judge which being only Rs. 25
lacs - Regarding decree of counter claim,
petitioner preferred first appeal before
District Judge - Objection by respondents
on maintainability of appeal, on the ground
that for purposes of jurisdiction, valuation
5 All. Jyoti @ Heera Vs. Omwati @ Sato & Ors.
379
of suit will matter, therefore, appeal would
lie before High Court - District Judge held
that appeal not be maintainable in its court
- Impugned order - Held, for purpose of
payment of court fees, valuation of decreed
counter claim will be relevant, but for
purpose of jurisdiction so as to select a
forum of appeal, valuation of suit would be
relevant - Petition lacks merit, dismissed.
(Para 2, 3, 11, 31)

Petition dismissed. (E-13)

List of Cases cited:

## Text

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378 INDIAN LAW REPORTS ALLAHABAD SERIES
when such exercise is to meet the ends of
justice and to prevent abuse of process of
court."
(emphasis added)

56. From careful reading of the
paragraph 12 above, it is clear that if the
provision
dealing
with
particular
points/aspects, either expressly or by
necessary implication exhausting the scope
of power of the court or jurisdiction then that
power may be exercised in relation to that
matter and inherent power cannot be
invoked.

57. Thus, the fundamental rule of
judicial procedure is that when a provision
is there and it prescribes for a power to be
exercised in a particular manner then it
should be exercised in that manner alone.

58. In view of above, the point No.(iv)
stands partly decided in favour of the
judgment-debtor, State-petitioners before
this Court.

59. Thus, in view of above, petition
filed as Matter under Article 227 No.1806 of
2015 directed against the order dated
29.03.2024 passed by the executing court
and the order of the revisional court in Civil
Revision No.66 of 2014 arising out of the
same, dated 26.03.2015 is dismissed and the
petition filed as Matter under Article 227
No.1807 of 2015 against order dated
25.08.2014 passed by the executing court
upon misc. case filed under section 151
C.P.C. and the order of the revision court
affirming the same, dated 26.03.2015 is
hereby allowed. The order passed by the
executing court dated 25.08.2014 and that of
the revisional court are hereby set aside.

60. Matter is remitted to the executing
court to be decided afresh in so far as
performance
of
decree
of
perpetual
injunction is concerned in terms of the
provisions as contained under order 21 Rule
32 (5) read with Section 51(3) C.P.C. in
accordance with law, as expeditiously as
possible preferably within a period of three
months from the date of production of
certified copy of this order.
----------
(2024) 5 ILRA 378
ORIGINAL JURISDICTION
CIVILL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 3470 of 2020

Jyoti @ Heera ...Petitioner
Versus
Omwati @ Sato & Ors. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Singh, Shreya Gupta

Counsel for the Respondents:
Siddhartha Srivastava

Civil Law - Civil Procedure Code,1908 -
Section 9 - O. 8 - Rule 6-A - O. 20 - Rule
5- O. 20 R. 19 (1) and (2) - Limitation Act,
1963 - Section 14 - Petitioner instituted a
suit for permanent prohibitory injunction -
On suit property, relief claimed, valuation
declared was Rs. 50 lacs - Respondent nos.
1 & 2 filed written St.ment, counter claim,
valuation was declared at Rs. 16 lacs - Trial
court dismissed the suit, decreed the
counter claim of respondents - Petitioner
filed first appeal before High Court, on the
ground that valuation being Rs. 50 lacs, it
executed the pecuniary limit of jurisdiction
of District Judge which being only Rs. 25
lacs - Regarding decree of counter claim,
petitioner preferred first appeal before
District Judge - Objection by respondents
on maintainability of appeal, on the ground
that for purposes of jurisdiction, valuation
5 All. Jyoti @ Heera Vs. Omwati @ Sato & Ors.
379
of suit will matter, therefore, appeal would
lie before High Court - District Judge held
that appeal not be maintainable in its court
- Impugned order - Held, for purpose of
payment of court fees, valuation of decreed
counter claim will be relevant, but for
purpose of jurisdiction so as to select a
forum of appeal, valuation of suit would be
relevant - Petition lacks merit, dismissed.
(Para 2, 3, 11, 31)

Petition dismissed. (E-13)

List of Cases cited:

1. Cantonment Board Vs Shakuntala Devi, 2018
(5) ADJ 647

2. Jag Mohan Chawla & ors.Vs Dera Radha
Swami Satsang & ors., (MANU/SC/0565/1996)

3. Ashok Kumar Singh Sengar Vs Om Prakash
Chaturvedi, 2016 All. C.J. 1394

4. Govind Singh Vs Rajendra Prasad Gupta,
2018 All. C.J. 1941

5. Pampara Philip Vs Koorithottiyil
Kinhimohammed, 2007 0 AIR (Ker) 69; 2006 0
Supreme (Ker) 680

6. Teofilo Barreto Vs Sadashiva G. Nasnodkar &
Others, 2007 (3) Civil Court Cases 565
(Bombay)

7. Iqbal Banu Vs Ramesh & ors., 2018 LawSuit
(Raj) 933

8. Kazi Syed Saifuddin Vs Kasturchand
Abhayrajji Golchha, 2000 (4) BOMCR 582

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Ms. Shreya Gupta and Sri
Ashish Kumar Singh, learned counsel for
the petitioner as well as Sri Siddhartha
Srivastava,
learned
counsel
for
the
contesting respondents.

2. Briefly stated facts of the case are
that plaintiff/ petitioner before this Court,
instituted a suit for permanent prohibitory
injunction being Original Suit No. 719 of
2010 and looking to the suit property and the
relief claimed, the valuation declared was
Rs. 50 lacs. In the said suit the defendant/
respondent nos. 1 & 2 filed their written
statement as well as counter claim to which
the valuation was declared at Rs. 16 lacs.
There was never a dispute raised regarding
valuation of the suit as well as the counter
claim.

3. By common judgment and decree
dated 26.11.2018 the trial court while
dismissing the suit, decreed the counter
claim of the defendant/ respondent nos. 1 &
2. Resultantly, petitioner preferred a first
appeal before the High Court against the
judgment dismissing his suit on the ground
that valuation being Rs. 50 lacs, it executed
the pecuniary limit of jurisdiction of District
Judge which being only Rs. 25 lacs. First
Appeal came to be registered as First Appeal
No. 157 of 2019. In so far as the decree of
the counter claim is concerned, the plaintiff/
petitioner preferred a first appeal before the
District Judge. The defendant/ respondent
nos. 1 & 2 took an objection as to the
maintainability of the appeal on the ground
that for the purposes of jurisdiction it is the
valuation of the suit which will matter and
therefore, the appeal would lie before the
High Court and not before the District
Judge. This objection was upheld by the
District Judge, Bareilly under his order
dated 13.03.2020 holding the appeal to be
not maintainable in the court of District
Judge on account of pecuniary limit of Rs.
25 lacs to exercise the jurisdiction. Thus, the
Misc. Case No. 54 of 2020 was disposed of.
It is this order which is under challenge
before this Court.

4. It had been argued by learned
counsel for the petitioner Ms. Shreya Gupta
380 INDIAN LAW REPORTS ALLAHABAD SERIES
that the learned District Judge had wrongly
interpreted the relevant provisions of C.P.C.
to hold that appeal would lie in a court
having pecuniary jurisdiction for valuation
of the suit. It was argued that a harmonious
construction of the provisions contained
under Order VIII Rule 6-A and Order XX
Rule 19(2) of C.P.C. would lead to the
conclusion that the counter claim for being
treated
as
an
independent
suit
for
adjudication, therefore, its valuation would
matter in choosing a forum for appeal
arising out of the judgment of trial court. It
is argued that Order VIII Rule 6-C itself
provides that a counter claim cannot exceed
the pecuniary limit of the jurisdiction of the
court where the suit is pending.

5. So any counter claim with higher
valuation would not lie before the concerned
court trying the suit.

6. According to Ms. Gupta, therefore,
the counter claim inviting an independent
adjudication may be by way of common
judgment by the trial court, would have to be
taken as independent suit for all purpose
including its valuation to chose a forum of
appeal.

7. The next argument submitted was
that Order XX Rule 19(1) and (2) of C.P.C.
did not prescribe for regular appeals but for
cases where the money decree was passed.
It was also argued additionally, that Order
XX Rule 19(1) of C.P.C. was only for the
purposes of drawing a decree and not for
providing a forum of appeal. According to
her, the manner and method of drawing a
decree has been the object for incorporating
the relevant provisions under Order XX of
C.P.C. by the legislature. According to
learned Advocate Order XX Rule 1 and 2 of
C.P.C. had nothing to do with Order XLI of
C.P.C.

8. In support of her argument,
learned counsel had relied upon the
judgment of coordinate bench in the case of
Cantonment Board v. Shakuntala Devi,
2018 (5) ADJ 647, a Supreme Court
judgment in the case of Jag Mohan Chawla
& Others v. Dera Radha Swami Satsang
& Others, Civil Appeal No. 8275 of 1996
(arising out of S.L.P. (C) No. 22254 of 1994
decided on 07.05.1996 (MANU/ SC/
0565/1996).

9. Per contra Sri Siddharth Srivastava
learned Advocate had submitted that
provisions regarding counter claim to be
decided like a suit came to be incorporated
by way of inserting Rule 6-A under Order
VIII vide amending Act No. 104 of 1976 and
simultaneously vide same amending Act,
Order XX Rule 19(1) and 19(2) also came to
be amended incorporating the words and
expression "or counter claim" at various
places. Thus, according to him whether it
was a decree in a suit instituted or in the
event counter claim was allowed against the
plaintiff, appeal arising out of such decree
shall be subject to the same provisions as
applicable in respect of appeals, if no
counter claim had been set up. He has also
drawn the attention of the Court to first
proviso to sub rule (1) of Rule 6-A of Order
VIII that counter claim exceeding the
pecuniary limits of the jurisdiction of the
Court where the suit was pending, shall not
be entertained. Thus, according to him it was
ultimately the valuation of the suit that
would be a determinative factor for
jurisdiction of a court whether decree in suit
is challenged or decree in a counter claim of
the same suit.

10. Learned counsel for the respondent
Mr. Siddharth Srivastava has relied upon the
judgment of coordinate bench of this Court
in the case of Ashok Kumar Singh Sengar
5 All. Jyoti @ Heera Vs. Omwati @ Sato & Ors.
381
vs. Om Prakash Chaturvedi, 2016 All.
C.J. 1394, Division Bench of this Court in
the case of Govind Singh vs. Rajendra
Prasad Gupta, 2018 All. C.J. 1941.
Judgment of Kerala High Court in the case
of Pampara Philip vs. Koorithottiyil
Kinhimohammed, 2007 0 AIR (Ker) 69 =
2006 0 Supreme (Ker) 680; Teofilo
Barreto vs. Sadashiva G. Nasnodkar &
Others, 2007 (3) Civil Court Cases 565
(Bombay).

11. Having heard learned counsel for
the parties and having perused the records,
pleadings raised, the order impugned, the
relevant provisions of C.P.C. placed before
me, I find the only issue to be, as to whether
an appeal in the event of a decree passed by
the trial court decreeing the counter claim
would lie on the basis of valuation of
counter claim or valuation of the suit. In
order to appreciate the argument advanced
by learned counsel appearing for the
respective parties, it is necessary to
reproduce the provisions as contained under
Order VIII Rule 6-A of C.P.C. which is
quoted herein below:

"6-A.
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 counterclaim 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."

(Emphasis added)

12. From the provisions as quoted
above, it is clear that the defendant has been
vested with a right to set up a counter claim
to the claim set up in the plaint. Sub rule (1)
of Rule 6-A is very clear that once the suit
has been brought in by the plaintiff whether
before bringing the suit or after bringing the
suit, if the defendant has a cause of action to
set up a counter claim against the plaintiff,
he may do so. So, he need not file a separate
suit but to set up a counter claim, obviously
the purpose being same and the suit property
being same.

13. Sub rule (2) clearly provides that if
such counter claim is set up then it will be
treated for the purposes of adjudication like
a cross suit so as to enable the court to
pronounce the judgment on its own merit
independent of the merit of the claim set up
by
the
plaintiff
and
so
in
these
circumstances, sub rule (3) provides for the
plaintiff to file a written statement to the
counter claim. The counter claim thus, has
been directed to be treated as a plaint and
shall be governed by rules applicable to the
plaints. This is perhaps the reason why it has
been held repeatedly by the court that the
counter claim cannot be by way of pleadings
seeking amendment in the written statement.
382 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Though a counter claim can be set
up along with the written statement as a
plaint case for the defendant but what is very
interesting in the provision is the first
proviso to sub rule (1). The proviso does not
permit a counter claim to exceed the
pecuniary limit of jurisdiction of the court.
Obviously the jurisdiction of the court
means where the suit has been instituted, so
any counter claim, if it is to be tried as per
rule 6-A, it is to be within the pecuniary
limits as far as jurisdiction of the court is
concerned where the suit is pending.

15. Now it is also necessary to go
through the relevant provisions as contained
under Rule 19 of Order XX and its sub rules.
The Rule 19 of Order XX is reproduced
hereunder:

"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.

(2) Appeal from decree relating to
set-off [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 setoff [or counter-claim] had been claimed.

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

16. The heading of the rule 19 shows
the words and expression "or counter claim"
in caption and also so in sub rule (1) and (2).
The caption part is linked to the amendment
introduced in C.P.C. in these provisions vide
amending Act No. 104 of 1976.

17. Interestingly rule 6-A of Order VIII
is also inserted vide Amending Act No. 104
of 1976. This goes, therefore, to show
clearly that legislature since was introducing
a provision to enable the defendant in a suit
to set up counter claim to be tried as an
independent suit, wanted that appeal against
the decree allowing the counter claim should
be subject to same provisions as applicable
to appeals arising out of the decrees in suit.
Order XX talks of judgment and decree
when to pronounce and how to pronounce.
It also provides the format of the judgment
and also to be signed by the Judge. Rule 5A was also inserted in Order XX vide
amendment Act No. 104 of 1976, which
provides for the Judge while announcing the
judgment in the event it is subject to appeal
to inform the parties, as to the court to which
the appeal lies and also the period of
limitation for filing such appeal and also
shall place on record the information so
given to the parties. Thus, Order XX deals
with appeals to be filed against the judgment
at least to put the learned Judge under
obligation to intimate the parties.

18. In so far as the judgment in the case
of
Cantonment
Board
(supra)
is
concerned, I find that in the said judgment
the issue was entirely different. In the said
case two suit proceedings were instituted
while in one suit proceedings, the counter
claim came to be allowed which was
appealed against unsuccessfully in the first
appeal then in second appeal and thus, the
decree in the counter claim became final, but
the opposite party Cantonment Board tried
to raise a question as to the validity of the
decree of the counter claim during the
pendency of appeal arising out of the second
suit. The court had held that once the counter
5 All. Jyoti @ Heera Vs. Omwati @ Sato & Ors.
383
claim had become final after the decree
stood affirmed in the first appeal and second
appeal and so it was not open for the
cantonment board to raise question as to the
maintainability of the counter claim in
second appeal arising out of another suit. So
it is in that context the court held the right of
claim in respect of the cause of action
accruing before the defendants against the
plaintiff either before or after filing of the
suit but of course, before the defendant had
delivered his defence or before the time for
delivering defence had expired. The court
dealt with the issue and dismissed the
appeal. Vide paras 23, 24 and 31 the court
has held thus:

"23. With regard to the counter
claim of the defendant-respondent no. 2
seeking
a
declaration
against
the
Cantonment Board it is to be noted that the
trial court by the impugned judgment
decreed the counter claim of the defendantrespondent no. 2. Though a first appeal was
filed by the Board against the judgment of
the trial court decreeing the counter claim
of the defendants the appellate court
dismissed the appeal and no second appeal
has been preferred against the said decree,
decreeing the counter claim and therefore,
the decree of the trial court with regard to
the counter claim set up by the defendantrespondent no. 2 has become final and
cannot be questioned in the present second
appeal.

24. Even otherwise, the contention
of the learned counsel for the appellant that
the
counter
claim
itself
was
not
maintainable is wholly fallacious. Order
VIII Rule 6-A of the Code of Civil Procedure
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 counterclaim against the claim of the plaintiff, any
right or claim in respect of a cause of action
accruing 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 for
delivering defence has expired.

31. The right to set up a counterclaim was introduced in the Code of Civil
Procedure by Amendment Act no. 104 of
1976 w.e.f. 1.2.1977 introducing Rule 6-A in
Order VIII. Likewise the amendment in
Order XX Rule 19 providing for appeal
against a counter-claim was also introduced
by the Amendment Act no. 104 of 1976 and
Sub Rule 2 of Rule 19 clearly provides that
any decree passed in a suit in which a setoff or counter-claim is claimed shall be
subject to the same provisions in respect of
appeal to which it would have been subject,
if no set-off or counter-claim had been
claimed. Thus, when the counter-claim set
up by the defendant-respondent no.2 had
been decreed by the trial court it cannot be
said that, that decree can be examined in the
present second appeal without preferring
any second appeal against the said decree.
Having not preferred any second appeal
against the decree in the counter-claim of
the defendant-respondent no. 2 and the
decree of the trial court decreeing the
counter-claim of the defendant-respondent
no. 2 having become final, in my opinion, it
is not open for the appellants to question the
same in the present second appeal."
(Emphasis added)

19. Order XX Rule 6 provides for
contents of decree and as a sequel to the
same Rule 19 provides for appeals and after
inserting the words and expression 'counter
claim' these provisions are also applicable to
the judgment passed in counter claim.

20. In so far as the judgment in the case
of Jag Mohan Chawla (supra) cited by Ms.
Gupta, is concerned, the court in that case
384 INDIAN LAW REPORTS ALLAHABAD SERIES
has also gone into this aspect of the matter
that a the counter claim as has been
conceived of and contemplated under Rule
6-A to 6-G of Order XX is virtually a cross
suit to be adjudicated upon like an original
suit and it may not relate through or
connected with the original cause of action
or pleadings raised by the plaintiff. The
court held that the defendant may set up a
cause of action which accrued to him even
after the institution of suit.

21. I do not find any dispute to this
above preposition of law. The provisions as
contained under sub rule (1) of Rule 6-A
clearly provides for maintaining the counter
claim of the defendant may be for a cause of
action prior to or subsequent to institution of
the suit.

22. Now coming to the judgment cited
by learned counsel for the respondents Mr.
Srivastava in the case of Ashok Kumar
Singh Sengar (supra), I find that a
coordinate bench of this Court has very
exhaustively dealt with the provisions as
contained under Order XX Rule 19(2) of
C.P.C. The coordinate bench relied upon the
judgment of Full Bench of Bombay High
Court and Kerala High Court that had been
cited before me as well. The Court dealt with
the provisions as contained under Order XX
Rule 19 C.P.C. along with Rule 6-A of
Order VIII of C.P.C. and ultimately held that
for the purpose of maintaining appeal in the
event a decree passed in counter claim was
challenged, it was the valuation of the plaint
that would matter. Vide paras 20, 21, 22, 23,
24, 27 & 28 the court held thus:

"20.
Order
20,
Rule
19(2)
specifically provides that 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 no set-off or
counter-claim had been claimed. Therefore,
on a plain reading if any decree passed in a
suit shall be subject to the same provisions
in respect of appeal to which it would have
been subject.

21. It is evident therefrom that
where there is any set-off or counter-claim
actually preferred, the decree would be
subject to the same provisions in respect of
appeals, as if no set-off or counter-claim
had been claimed.

22. Now the provisions relating to
appeals in respect of decree is not only
governed by the provisions contained in
Section 96 and Order XLI of the C.P.C.,
1908, but also subject to the provisions
contained in the Bengal, Agra and Assam
Civil Courts Act 1887, the Limitation Act,
1963 and Court Fees Act, 1870.

23. Section 21 of the Bengal, Agra
and Assam Civil Courts Act says that an
appeal from a decree or order of a Civil
Judge shall lie (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
five lakhs rupees (enhanced to 25 lakhs
rupees for purposes of filing appeals to the
District Judge vide U.P. Act 14 of 2015
w.e.f. 7 December, 2015) and that for the
purpose of finding the forum of appeal it is
the value of the original suit which has to be
determined and not the value of the appeal
itself, and if the value of the original suit is
more than five lakhs rupees, whatever the
value of the appeal may be, the appeal shall
lie to the High Court. The subject matter of
an appeal is valued according to the
provisions of the Suits Valuation Act and the
Court Fees Act. It is not governed by the
Bengal, Agra and Assam Civil Courts Act.
(Vide-Sri Purshottam Das Tandon and
others Vs. Sri Shyam Nath Segal and others,
(1952 AWR 450), Smt. Shalu sharma Vs.
5 All. Jyoti @ Heera Vs. Omwati @ Sato & Ors.
385
Ajay Sharma (AIR 2003 (All) 18) and Gaya
Prasad and others Vs.Ram Charan (AIR
1939 (All) 273).

24. The Full Bench of Bombay
High Court in Kazi Syed Saifuddin Vs.
Kasturehand Abhayrajji Golchha (2000 (4)
Bom.C.R. 582); held that once the suit is
valued and the jurisdiction of the Court is
thus determined at the stage when the suit is
instituted, that will be the valuation for the
subsequent proceedings in the suit also.
Obviously, therefore, the appeal being
continuation of the suit, the valuation will
govern appeal as well and for the purpose of
forum of appeal. It was further held that
where both suit and counter claim are
dismissed, the subject matter of the appeal
would be the plaint. Hence valuation would
be as per the valuation of the plaint and
Court fee as payable on the plaint, would be
as due and payable thereon. The plaintiff
cannot be made to value his appeal on the
basis of the combined valuation of the plaint
and counter claim, in respect of which he
makes
no
claim.
The
report
was
subsequently followed in Teofilo Barreto Vs.
Sadashiva G. Nasnodkar and others (2007
(4) Bom.C.R. 830).
27. The jurisdiction of the Appellate Court
cannot
be
made
dependent
on
the
fluctuating valuation of the claim in appeal.
The valuation of claim in appeal has
relevance only for the purposes of court fee.
The
valuation
for
the
purposes
of
determining jurisdiction and for the purpose
of court fee are two distinct factors. They
need not be identical or common. The
appellant may restrict or relinquish part of
the
claim
and
accordingly
pay
proportionate court fee thereon.

28. The courts below in my
opinion have correctly held that valuation of
the suit would be valuation of the appeal for
determining the jurisdiction of appellate
court and not the combined value of the suit
and counter claim."
(Emphasis added)

23. The Division Bench of this Court
in the case of Govind Singh (supra) has held
that jurisdiction of appeal has to be governed
by the valuation of the suit and not that of
the cross appeal as the valuation of suit is
normally static but that of appeal may vary
depending upon the relief granted or refused
by the court of first instance. Therefore, it
could be a case where the suit of higher
valuation is dismissed but the counter claim
of lesser valuation is decreed in the said suit
by a common judgment and decree. So far
the purposes of payment of court fees the
valuation would vary but as far as the
jurisdiction is concerned, it will depend
upon the valuation of the suit. Vide paras 13,
14, 15, 16 & 17 the Division Bench has held
thus:

"13. Section 21 of the Act as
amended vide U.P. Civil Laws (Amendment)
Act, 2015 provides for the appeals from
Civil Judges and it inter alia lays down that
an appeal from a decree or an order of a
Civil Judge shall lie to the District Judge
where the value of the original suit does not
exceed from Rs.5,00,000/- or such higher
amount not exceeding Rs.25,00,000/- as the
High Court may fix from time to time by
notification in the official gazette. It means
that appeals from Civil Judges would lie to
the District Judge if the value of the original
suit from which it arises is between
Rs.5,00,000/- to Rs.25,00,000/- and the
appeals arising from original suits of higher
valuation would thus lie to the High Court.

14. A simple reading of the
aforesaid Section 21 of the Act indicates that
it is the value of the original suit that
governs the jurisdiction of the appeal and
not of the valuation of the appeal.
386 INDIAN LAW REPORTS ALLAHABAD SERIES

15. It may be noted that the
valuation for the purposes of jurisdiction
and for the purposes of court fees are two
distinct factors.

16. The jurisdiction of the appeal
has to be governed by the valuation of the
suit and not that of the appeal as the
valuation of the suit is normally statistic
but that of the appeal may vary depending
upon the relief granted or refused by the
court of first instance. Thus, if the
jurisdiction of appeal is made dependent
upon the value of the appeal it will keep
fluctuating.

17. It is therefore, to avoid such
fluctuation in the jurisdiction of the
appellate court that Section 21 of the Act
provides
that
for
the
purposes
of
jurisdiction of appeal value of the original
suit alone is relevant."
(Emphasis added)

24. In the case of Iqbal Banu v. Ramesh
and others, 2018 LawSuit (Raj) 933, learned
Single Judge of Rajasthan High Court
(Hon'ble Justice Arun Bhansali, as his
Lordship then was) has dealt with the aspect of
the matter as to whether one appeal would be
maintainable if decree is one dismising the suit
and decreeing the counter claim, and held that
if the decree is one then while challenging the
decree passed in suit, the appellant can also
challenge the decree passed in counter claim
in the same appeal as there is no necessity to
file a separate appeal. Vide paras 17, 18 & 19
the court has held thus:

"17. However, the judgments of
Himachal Pradesh High Court in the case of
Parso
(supra)
and
H.P.State
Forest
Corporation (supra) as well as both the
learned counsel appearing for the parties
did not notice the statutory provisions
contained in Order XX Rule 19 CPC, which
reads as under:

"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.

(2) Appeal from decree relating to
set-off 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 no set-off or
counter-claim had been claimed.

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

18. A bare look at the above
provision would reveal that where the
defendant is allowed a counter claim
against the claim of the plaintiff, the decree
shall state so. The crucial provision is subrule (2) of Rule 19 which deals with appeal
from the decree relating to (7 of 7) [CFA166/2018] counter claim, which expressly
provides that any decree passed in a suit in
which a counter claim is claimed shall be
subject to the same provisions in respect of
appeal to which it would have been
subjected, if no counter claim had been
claimed.

19. Language of the provision is
explicit, wherein, it has expressly provided
that in an appeal from decree passed in suit
where a counter claim has been claimed, the
appeal would be filed as if no counter claim
had been claimed, which necessarily means
that the appeal would be against the decree
passed in the main suit and the appellant
would be entitled to question the passing of
the decree on counter claim in the same
appeal and, therefore, there is absolutely no
necessity of filing separate appeal in case
5 All. Jyoti @ Heera Vs. Omwati @ Sato & Ors.
387
where the counter claim preferred in a suit
has been decreed by the trial court."
(Emphasis added)

25. It is clear that if one appeal lies then
one set of court fee will be payable and so
also the jurisdiction of that court will get
attracted where appeal is maintainable
against decree passed in Suit. So it will
result in dichotomy both in theory and
propriety to hold that appeal against decree
in suit will lie in a court of higher pecuniary
jurisdiction for valuation of suit and appeal
in the matter of counter claim would lie to a
court inferior in hierarchy for lower
valuation of counter claim. This neither
appeals to logic nor, could be an intendment
of the legislature.

26. In the case of Teofilo Barreto
(supra) an issue arose as to forum to prefer
appeal in the event suit is dismissed and
counter claim is allowed and the learned
Single Judge of Bombay High Court relied
upon the Full Bench judgment of that very
court in the case of Kazi Syed Saifuddin vs.
Kasturchand Abhayrajji Golchha, 2000
(4) BOMCR 582, to hold that the forum of
appeal would be determined on the basis of
valuation of a suit and not the counter claim.
In that case the Bombay High Court has held
that in the provisions contained under Order
XX Rule 19 of C.P.C. as have come to be
amended, the set up off and counter claim
are treated at par and have been brought on
the same platform with the equal status,
same treatment is to be given to the counter
claim for the purposes of appeal as is given
to a decree of set off. So the provisions for
appeal would be the same as applicable to
the decree of the suit as if no counter claim
has been filed. The Court therefore,
concluded that "If the legislative view is that
the decree wherein the set off is claimed
should go before the same Appellate Forum
to which it would have been subject in
normal course in absence of claim for setoff; then so far as the counter-claim is
concerned; the same treatment will have to
be accorded to a decree passed in a suit
where counter-claim was preferred. As an
extension of the same principle, the cross
objection arising from the decree of set-off
and/or counter-claim will have to be given
similar
treatment
in
the
matter
of
determination of Appellate Forum." This
same principle and analogy was made to
apply to the cross objection.

27. Thus in view of the above
exposition of law, the argument advanced by
learned counsel for the petitioner that since
the cause of action is relating to decree
passed in counter claim is relating to the
pleadings in the counter claim and the
decree incorporates valuation of counter
claim, it is this valuation would be relevant
for determination of forum, is rejected. The
principal
proceedings
being
suit
proceedings and a counter claim being an
added advantage given to the defendant to
get his claim tried also against the plaintiff
but within the jurisdiction in which the suit
has been instituted, would mean that it is the
valuation of the suit which will determine
the forum of appeal.

28. Applying the principle of
analytical jurisprudence to the concept of
law with which legal provisions have been
structured by legislator in the Code of Civil
Procedure, I find section 9 to be a
substantive provision that provides for
institution of a suit in a court of competent
jurisdiction. Once the suit is instituted,
different orders with rules provide for
procedure to be followed and likewise for
execution of a decree. Section 96, another
section provides for first appeal and section
100 provides for second appeal. Order 41
388 INDIAN LAW REPORTS ALLAHABAD SERIES
provides for method of filing appeal and
order 43 provides for misc. civil appeals
against various orders, passed by court of
first instance. Order VIII Rule 6-A
provides for counter claim to be tried in a
suit but puts a rider that counter claim will
not exceed in its valuation so as to be
beyond
the
pecuniary
limit
as
to
jurisdiction of trial court where suit is
going on. Thus, it is well thought of
provision to maintain that any counter
claim to plaintiff's suit would be triable by
the same court. Had there not been a suit,
there would have been no counter claim
except a fresh suit by such defendant. The
legislation, therefore, in its wisdom rightly
made
valuation
of
suit
to
be
a
determination factor to maintain a counter
claim as to forum for adjudication.

29. Again, therefore, legislature
amended Order XX Rule 19 to include
counter claim. Virtually a counter claim
is like a set off claimed by defendant
against claim for money set up by the
plaintiff. The decree to uphold set off in
a money suit is one and so also decree
dismissing the suit and decreeing the
counter claim is one and it is the decree
which is appealable at a higher forum
should also be a forum to question set off
and so also decree passed in counter
claim. So if plaintiff would chose a
forum to challenge a decree dismissing
the suit, shall have to chose that same
forum for appeal against that very decree
decreeing the counter claim. Plaintiff
can not chose two forums to question a
common decree on the basis of two
different valuations qua suit and counter
claim.

30. To address this issue from
different angle is also necessary. If two
forums are allowed to question a
common decree, it may invite contrary
judgments in appeal or in other words a
court lower in hierarchy may be asked by
higher court to wait for its judgment.
This, if happens, will certainly frustrate
the purpose with which right to file
counter claim was vested in a plaintiff's
suit. The argument by Ms. Gupta that
right to second appeal will be lost if the
order impugned is upheld, does not
appeal to reason. Ms. Gupta's client has
already filed first appeal before the High
Court, and will have no opportunity of
second
appeal
against
that
very
judgment. Legislative action to provide
for pecuniary jurisdiction to a court,
cannot be a matter of debate. This is all
done so in the wisdom of legislature and
one cannot be permitted to question
wisdom of legislature, the ultimate law
makers.

31. Thus, for the purpose of payment
of court fees the valuation of decreed
counter claim will be relevant but for the
purpose of jurisdiction so as to select a
forum of appeal, it is the valuation of suit
which would be relevant. The District
Judge therefore, rightly held that appeal
was not maintainable.

32. Petition thus on this count lacks
merit as no error of law is seen in the
judgment passed by the District Judge.
However, it is left open for the petitioner
to either seek amendment in the first
appeal pending before this Court or file a
separate first appeal challenging the
decree allowing the counter claim and
move an appropriate application also
along with that seeking benefit of Section
14 of Limitation Act, 1963.

32. Thus, this petition decided
accordingly.
5 All. Gopal Ji Agrawal Vs. Anurag Kumar Dixit & Ors.
389
----------
(2024) 5 ILRA 389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 6031 of 2024

Gopal Ji Agrawal ...Petitioner
Versus
Anurag Kumar Dixit & Ors. ...Respondents

Counsel for the Petitioner:
Kamlesh Kumar Tiwari

Counsel for the Respondents:
Manoj Singh Rathaur, Udayan Nandan

Civil Law - Civil Procedure Code,1908 -
Section 47 - O. 13 - Rule 10(1) - SCC Suit
was
filed
by
landlord/petitioner
on
8.12.1981, dismissed, not accepting tenant
landlord relationship - SCC Revision was
filed by petitioner, dismissed - Writ Petition
was filed challenging both orders, allowed
- Thereafter, Review Application was filed
by tenant/defendant, dismissed - S.L.P.
was filed before Hon'ble Apex Court by
tenant, dismissed - Issue attained finality -
Tenant filed application u/s 47 CPC -
Executing court dismissed - Tenant filed
SCC Revision, dismissed - Both orders
challenged in High Court, dismissed -
Application under O. 13 R. 10(1) filed by
defendant,
for
summoning
record
-
Dismissed - Revision filed by tenant -
Stayed - Impugned Order - Held, revision
must be confined to facts mentioned in
original application - Passing the interim
order, considering new fact beyond original
application under O. 13 R. 10(1) CPC is bad
in law - Hence, impugned order quashed
(Para 3, 5, 19, 22)

Petition allowed. (E-13)

List of Cases cited:
1. Pradeep Mehra Vs Harijivan J. Jethwa (since
deceased THR. LRS.) & ors. (Civil Appeal No.
6375 of 2023 )

2. Shri Jagdamba Prasad (Dead) Thr. Lrs. &
ors.Vs Kripa Shankar (Dead) Thr. Lrs. & ors.;
2014(5) SCC 707