SATYENDER AND ORS. …..APPELLANTS (VERSUS)
SAROJ AND ORS. ………….,,,,.RESPONDENTS 
 CA 4833/22 17/08/22  [ SUPREME COURT OF INDIA ]

 

JUSTICE UDAY UMESH LALIT)
JUSTICE(S. RAVINDRA BHAT)
JUSTICE (SUDHANSHU DHULIA)

Order 8 Rule 6A CPC Counter claim A counter claim must be against the plaintiff 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.

Relevant Paras 

7. The matter was taken in second appeal by the plaintiffs. The second appeal of the plaintiffs was partly allowed. Though the High Court in the second appeal upheld the findings of the two Courts on the sub-letting and tenancy and upheld the findings of the lower courts in favour of the defendants as there was no sub- letting of the land, yet in the same breath the High Court has allowed the claim of the plaintiffs on the two plots i.e., 21//3/2 and 7//13 for the reasons that for these two plots though the plaintiffs had raised their claim and the defendants had not raised any counter claim on these plot numbers, which went uncontested.
8. In addition, it was also held by the High Court that the counter claims set up by the defendant (on plot Nos. 6//18 and 23) could not be decreed since the plaintiffs themselves had not set up any claim whatsoever for these two plots, i.e., Killa No. 6//18 and 23 and therefore under provisions of Order VIII, Rule 6A of the Code of Civil Procedure 1908 (hereinafter referred to as “CPC”), an independent counter claim having nothing to do with the plaintiffs can never be allowed.
9. The defendants are now before this Court. The first ground raised by the counsel for the appellant/defendant before thisCourt is that the High Court while deciding a second appeal did not formulate any substantial question of law, which was an essential requirement under Section 100 of the CPC. The learned counsel would argue that a second appeal can only be admitted and heard on a substantial question of law and since no substantial question of law was formulated nor any arguments advanced by the parties before the Second Appellate Court (High Court) as mandated by Section 100 of the CPC, the order of the High Court is liable to be set aside on this ground alone. This seemingly attractive argument, however, does not hold any good in the present case as the subject matter of the present dispute is from Haryana where the governing provision would be Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. This was held by a Constitution Bench of this Court in Pankajakshi & Ors. v. Chandrika & Ors.1 which was later followed in Kirodi v. Ram Parkash & Ors.2

10. 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
1 (2016) 6 SCC 157 2 (2019) 11 SCC 317
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. The earlier, i.e., unamended position read as under: –
“100. Second appeal – (1) “Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this section from an appellate decree passed ex parte.”
Under the Punjab Courts Act, 1918, a similar provision is given as regards a second appeal. This is in Section 41 of the Act which is

in pari materia to the unamended Section 100 of the CPC and reads as follows: –
“41. Second appeal— (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some custom or usage having the force of law:
(b) the decision having failed to determine some material issue of law or custom or usage having the force of law,
(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits;
[Explanation. – A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this Section]

(2) An appeal may lie under this section from an appellate decree passed ex parte.”
11. 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.
12. As referred above, the present Section of the 100 CPC was inserted in the CPC by the Amendment Act of 1976. Section 97 of the Amendment Act of 1976 which was relied upon by this Court

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SATYENDER AND ORS VERSUS SAROJ AND ORS. Judgement_17-Aug-2022

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