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Dan Singh & Others v. Khaleel Higher Secondary School & Another - SECOND APPEAL No. 322 of 2007 [2007] RD-AH 6423 (9 April 2007)


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                                                                                      COURT NO.27


Dan Singh and others....................................................Appellants.


Khaleel Higher Secondary School Kutubkhana,

Chaupla Road, Bareilly and another.............................Respondents.

                                                   Connected with


Dan Singh and others....................................................Appellants.


Khaleel Higher Secondary School Kutubkhana,

Chaupla Road, Bareilly and another.............................Respondents.

Hon'ble Mrs. Poonam Srivastav, J.

Heard Sri Amit Saxena and Sri Umesh Vats, learned counsels for the appellants and Sri Pankaj Naqvi, learned counsel appearing for the caveator/respondents.

Two appeals arise out of common judgment and decree dated 24.2.2007 passed by the Additional District Judge, court no.7, Bareilly, in civil appeal nos. 17 of 1999 and 16 of 1999, Dan Singh and others Vs. Khaleel Higher Secondary School and another confirming the judgment and decree dated 16.12.1998 passed by the Additional Civil Judge (Senior Division) IV, Bareilly.

The plaintiff/appellants instituted a suit for injunction. Relief claimed was for permanent injunction restraining the defendants from interfering in possession of the room in occupation of the plaintiffs.  According to the pleadings, father of the appellants was working in the institution and he died in harness. The defendants had given an assurance to the late father of the plaintiffs that one of his heirs will be given an employment in the institution in case he dies during service and also that the plaintiffs will not be ousted from the room, which was in their occupation since life time of their father. The defendant/respondents filed a written statement as well as counterclaim for possession of the accommodation in question. The plaintiffs filed objection to the counterclaim preferred by the appellants.  The suit, and appeal filed against the  judgment of the trial court were dismissed as well.

Learned counsel for the appellants has framed a number of substantial questions of law. He submits that counterclaim was not maintainable and could not be entertained on the ground that it was not properly valued and consequent court fee paid by the defendant/respondents was deficient as well as the court had no jurisdiction. It is also submitted that counterclaim was not presented in the format as required under the law. The trial court framed as many as seven issues but questions raised before this Court regarding valuation, payment of court fee, jurisdiction etc were not considered and, therefore, though the trial court framed as many as seven issues  but none of them relates to the questions raised in the instant appeal. The plaintiff/appellants raised question of maintainability of the counterclaim for the first time in the appeal before the District and Sessions Judge. The matter was not remanded for the reasons that the objections raised are all legal in nature and do not require any fresh evidence to be recorded and, therefore, the lower appellate court proceeded to decide the question itself.  Learned counsel for the plaintiff/appellants has placed Section 4 of the Suits Valuation Act, 1887 (U.P. Amendment), which reads as follows;

"4. Valuation of certain suits for the purposes of jurisdiction,- Suits mentioned in the paragraphs IV (a), IVA, IVB, V, VA, VB, VI, VIA, VIII and X(d) of section 7 and Articles 17, 18 and 19 of Schedule II of the Court-fees Act, 1870, as in force for the time being in the Uttar Pradesh, shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by or the title to which is affected by the relief sought, or at the amount involved in or affected by or the title to which is affected by the relief sought, and such value shall, in the case of land, be deemed to be the value as determinable in accordance with the rules framed under section 3."- Uttar Pradesh Act 7 of 1939, S.3 (w.e.f. 16-7-1939)"

In this regard Rule (e) has been placed before this Court in support of his argument that since counterclaim was for possession of the land and building, value of the land was liable to be determined in accordance with Rules plus market value of such building or garden situated thereon. Next submission is that requirement of law while preferring counter-claim provided under Order 8 Rule 6-A (2) C.P.C. is that it shall have same effect as a cross suit so as to enable the court to pronounce final judgment in the same suit, both on the original claim and counter-claim, and also that the counterclaim shall be treated as a plaint governed by the Rules applicable to the plaint.

In the present case, the defendant/respondents filed a composite  written statement and counter-claim, which are brought on record. Perusal of the counter-claim shows that later part of the written statement is counter-claim, valuation has been given, cause of action and relief has been mentioned as well as the court fee is paid. In the circumstances, I am not in agreement with the submission of the counsel for the appellants that the counter-claim was not in proper format and was liable to be dismissed on this ground alone. The lower appellate court has discarded objection of the plaintiff/appellants on the ground that injunction suit was valued at Rs.1,000/- by the plaintiffs and the court fee paid was Rs.189.50 paise in accordance with Schedule 1 of the Court fees Act and, therefore, claim of possession by the defendants in the counter-claim was also for the same property and the lower appellate court recorded a categorical finding that no two different yardsticks can be adopted while assessing valuation of the same property, which is subject matter of the same suit. Perusal of the lower appellate court's judgment clearly shows that cogent reasons have been given while rejecting the objection of the plaintiffs.

Learned counsel for the appellants has placed reliance on a decision of Orissa High Court Nabakishore Sahu and another Vs. State of Orissa and others AIR 1992 Orissa 303 paragraph no.5.  Legal question decided in the said case is altogether different and does not arise in the instant case. Orissa High Court remanded the matter for the reason that there was a prayer for amendment of written statement in the form of counterclaim, which was overruled since unrelated matter of the suit was brought by way of counterclaim.  Facts and law laid down by Orissa High Court are altogether different and not applicable to the controversy involved in the instant case.

Sri Pankaj Naqvi learned counsel appearing for the defendant/respondents has disputed each and every arguments at the very outset. He has stated that the plaintiffs had neither filed any documentary evidence nor come forward to adduce  any oral evidence in support of the pleadings. Only argument advanced before the trial court was even if they are unauthorized occupant, they cannot be evicted but in due process of law. Counterclaim was preferred along with written statement, ad valorem court fee was paid and the court allowed the counterclaim and relief for possession. The plaintiff's stake is that their eviction is only on account of reason that their father was an employee of the institution and after his death, the plaintiffs were entitled for employment and thereby continue in occupation of the disputed room. In the circumstances, it is evident that claim of the plaintiff/appellants was without any basis and the courts below were of the view that they had no right to continue in occupation, which resulted in dismissal of the suit and appeal.

After hearing learned counsels for the parties and perusal of the the two judgment, I do not find any substance in the submission of the counsel for the appellants. Section 99 C.P.C. provides that no decree to be reversed or modified for error or irregularity not effecting merits or jurisdiction. In the instant case, since the plaintiffs could not establish their right by means of an iota of evidence, in my view, even if valuation was not in accordance with Suits Valuation Act, the judgment and decree cannot be interfered by this Court in the second appeal.  The plaintiffs claimed right as licensee. No document was brought on record in support of the contention that they were given permission to continue in possession. The suit was for injunction to restrain the institution from interference in the peaceful possession and they could not be evicted otherwise than in accordance with law. In the case of Gurbachan Singh Vs. Bhag Singh and others (1996) 1 SCC 770, the Apex Court was of the view that only limitation while preferring a counter-claim or set-off, it must be pleaded by way of defence in the written statement before defendants submit his written statement, whether such counter-claim is in the nature of claim for damages or not. Further limitation was that counterclaim should not exceed the pecuniary limits of the jurisdiction  of the court. In other words, by laying counter-claim, pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting counter-claim beyond pecuniary jurisdiction. Thus it was held that in a suit for injunction, counter-claim for possession could be entertained by operation of Order 8, Rule 6(A)(1) C.P.C. In view of the aforesaid decision, it is apparent that the lower appellate court was perfectly correct while refusing to entertain objection regarding valuation, court fee and consequent jurisdiction of the court below to entertain the counter-claim.

Besides aforesaid proposition of law, I am also conscious that this is second appeal. The Apex Court in the case of Rajeshwari Vs. Puran Indoria (2005) 7 SCC 60.  "Substantial question of law" it was held that the proper test for determination whether question of law raised in a case is substantial and would affect rights of the parties, if so whether it is either an open question in the sense it was not finally settled by Hon'ble Supreme Court or Privy Council or federal court, or is not free from difficulty or calls for discussion or alternative views. Similar view was expressed by the Apex Court in the case of Govindaraju Vs. Mariamman (2005) 2 SCC page 500 as well as Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC page 179. The question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have material bearing as to the rights of the parties before the court.

In view of the foregoing discussion, substantial questions of law raised in the instant second appeal are not worth consideration. Objection of the plaintiff/appellants was without any substance. The second appeal lacks merit and is dismissed with cost.

Dt. 9.4.2007



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