Code of Civil Procedure, 1908: Or.VIII, r.6A – Counter Claim – Plaintiffs (respondents) filed suit for declaration and possession on agricultural land claiming that defendant No. 2 was their tenant who had sub-let the land to his son (defendant No.1), without the consent of the plaintiffs and hence, liable to be evicted – Defendant No.2 filing a separate written statement denied that they were ever tenant of the plaintiffs – A counter claim was also set up by defendant No. 2 claiming that in addition to the Khasra and Killa numbers given in the plaint, he was also in possession of two other Killa nos. i.e., 6//18 and 23 – Trial Court dismissed the suit but allowed the counter-claim – First appeal of plaintiff was also dismissed – High Court partly allowed the second appeal of the plaintiffs by allowing the claim of the plaintiffs on two plots i.e., 21//3/2 and 7//13 for the reason that the claim on these plots by plaintiffs went uncontested – High Court also held that the counter claims set up by the defendant could not be decreed since the plaintiffs themselves had not set up any claim whatsoever for these two plots, and therefore under provisions of Or.VIII, r.6A, an independent counter claim having nothing to do with the plaintiffs can never be allowed – Defendants filed instant appeal – Held: The finding of the High Court regarding two Killa Nos. 21//3/2 and 7//13 was erroneous as merely because the defendant did not raise a counter claim on this property it would not ipso facto mean that a decree ought to have been granted in favour of the plaintiffs – The burden of proof was on the plaintiffs to prove their case, which they failed – The finding of High Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is correct and is based on right interpretation of Or.VIII, Rule 6A of CPC as plaintiffs never raised any claim on Killa No. 6//18 or Killa No. 23 – 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 Or.VIII, r.6A of the CPC as it has nothing to do with the plaintiffs – Judgment and order passed by the High Court to the extent that it has decreed the claim of the plaintiffs on Killa Nos. 21//3/2 and 7//13 is set aside.
Code of Civil Procedure, 1908: s.100 – In the State of Haryana, a court in second appeal is not required to formulate a substantial question of law, as what is applicable in Haryana is s.41 of the Punjab Courts Act, 1918 and not s.100 of CPC – Punjab Courts Act, 1918 – s.41.
Disposing of the appeal, the Court
HELD: 1. Section 100 of the CPC as it stands today indeed mandates that a second appeal would lie before the High Court only on a substantial question of law, and a Second Appeal has to be heard on the substantial question of law, so formulated by the High Court. The provision of second appeal as it stands today was inserted in the CPC by Amendment Act No. 104 of 1976. Prior to the 1976 amendment, there was no requirement of substantial question of law. [Para 10][350-F-G]
2.1 Initially, it was held by this Court (in Kulwant Kaur v. Gurdial Singh Mann3) that after the 1976 Amendment, Section
100 of the CPC would be applicable in Punjab & Haryana and not Section 41 of the Punjab Courts Act, 1918 and a second appeal has to be decided only on a “substantial question of law”. It was held that after the 1976 Amendment Act, Section 41 of the Punjab Courts Act, stood repealed. Additionally, it was also held that Section 41 of the Punjab Courts Act was repugnant to Section
100 CPC in view of Article 254 of the Constitution of India. However, in Pankajakshi, a Constitution Bench held that the reasoning given in Kulwant Kaur for holding that Section 41 of the Punjab Courts Act stood repealed was not correct. Section
97 of Amendment Act of 1976 provides that only such provisions would stand repealed which were inserted in the principal Act (i.e., Code of Civil Procedure, 1908), by a State Legislature or High Court before the commencement of this Act (i.e., 1976 Amendment Act). As Section 41 of the Punjab Courts Act was neither an amendment in the principal Act nor a provision inserted in the principal Act therefore, it would not be covered by Section 97 of the Amendment Act of 1976, and there was hence no question of it being repealed under the provisions of Section
97 of the Amendment Act, 1976. [Paras 11, 12][352-A-B, E-F]
2.2 It was further held [in Pankajakshi] that the question of repugnancy and its application was also not correctly decided in Kulwant Kaur as Article 254 of the Constitution of India, was not applicable in that case. Section 254 would be applicable only to the laws made after the implementation of the Constitution of India and Section 41 of the Punjab Courts Act is of 1918 vintage and it was not made by a Legislature of the State after the Constitution of India had come into force. The Punjab Courts Act, 1918 was enacted under the provisions of the Government of India Act, 1935 and although by Article 395 of the Constitution of India, the Government of India Act, 1935 stood repealed yet by virtue of provisions of Article 372(1) of Constitution of India all the laws in force in the territory of India immediately before the commencement of the Constitution were to continue in force until altered or repealed or amended by a competent legislature or other competent authority. Since Section 41 of the Punjab Courts Act has not been altered, repealed or amended by State Legislature of Punjab or Haryana, it will continue to be in force. [Para 13][352-G-H; 353-A-C]
3. The laws as applicable in Punjab in the year 1918, were also applicable to the present territory of Haryana since it was then a part of the State of Punjab. Later on, the creation of the new State of Haryana, under the provision given in Section 88 of the Punjab Re-organization Act, 1966, the laws applicable in the erstwhile State of Punjab continued to be applicable in the new State of Haryana. Furthermore, State of Haryana formally adopted the laws of the erstwhile State of Punjab, under Section 89 of the Punjab Re-Organisation Act, 1966. Therefore, in the State of Haryana a court in second appeal is not required to formulate a substantial question of law, as what is applicable in Haryana is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. Consequently, it was not necessary for the High Court to formulate a substantial question of law. [Para 14][353-C-E]
4. Be that as it may, though the requirement of formulation of a substantial question of law was not necessary, yet Section 41 of the Punjab Courts Act, requires that only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law. Therefore, what is important is still a “question of law”. In other words, second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court. The plaintiffs had claimed right over certain agricultural land and their case was that they have the right to be declared the owner of this property and the possession be handed over to the them, for the reasons that on this particular property defendants and their predecessors-in-interest were the tenants of the plaintiffs. Their case was that defendant No. 2 was their tenant who had sub-let the property in favour of his son, that is defendant No. 1 and therefore, the property should be reverted back to the plaintiffs and they should be declared the owner and should be given the possession of the property as well. Both the Trial Court as well as the First Appellate Court had held after evaluating the evidence placed by the plaintiffs that defendant No. 2 and his brothers (who were not even made a party by the plaintiffs) were the tenants on the property and defendant No.2 had not sub-let the property in favour of his son that is defendant No. 1 and the revenue entries being made in this regard in the year 1978 are wrong and without any basis as there was no order of any revenue authority for making such an entry. In short, the plaintiffs had failed to prove their case as owner of the land in dispute. Hence their case of declaration and possession was dismissed. The Second Appellate Court however, quite erroneously, and without any justification, gave an entirely new finding regarding two Killa Nos. 21//3/2 and 7//13 on which the plaintiffs claimed relief of declaration and possession, on the same grounds as raised by them for the other Killa Nos. The pleadings also show that the defendants had made a general denial of the plaintiffs’ claim for all the plots. Yet, the High Court held that since the defendants had not made any claim for plot nos. 21//3/2 and 7//13 and therefore by logic a decree of declaration of possession ought to have been given to the plaintiffs for these plots! This reasoning of the second Appellate Court is erroneous for the simple reason that the burden of proof was on the plaintiffs to prove their case, which they had failed. They have not been able to prove to the satisfaction of the Trial Court as well as the First Appellate Court about their claim of any kind over this property. Merely because the defendant did not raise a counter claim on this property it would not ipso facto mean that a decree ought to have been granted in favour of the plaintiffs. Plaintiffs have to prove their case on the strength of their evidence. For this reason, the reasoning given by the Second Appellate Court for decreeing the claim of the plaintiff for plot nos. 21//3/2 and 7//13 is incorrect and to that extent is liable to be set aside. [Para 15][353-F; 354-A-H; 355-A]
5. 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 which was raised by the defendant is barred under Order VIII, Rule 6A of the CPC. 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. 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 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. Such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC. The counter claim set up by the defendants has been rightly rejected by the High Court. [Para 16][355-B-C, H]
Pankajakshi & Ors. v. Chandrika & Ors. (2016) 6 SCC
157 : [2016] 3 SCR 1018 – followed.
Kirodi v. Ram Parkash & Ors. (2019) 11 SCC 317 : [2019] 7 SCR 968; Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors. (1996) 4 SCC 699 :
[1996] 2 Suppl. SCR 509 – relied on.
Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC
262 : [2001] 2 SCR 525 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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