1 S.A. No. 2435/2005 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 2435/2005 ....APPELLANT : Smt. Saida Sultan ....DEFENDANT W/o Shri F.U. Khan, aged about 40 years, R/o Gali No. 7, Near Jamuna Wali Masjid, Fatehgarh, Bhopal (M.P.) -Versus- ....RESPONDENTS : 1. Jairam, aged about 55 years, ....PLAINTIFF S/o Shri Ram Prasad, R/o Gram Shahpur, Parwalia Sadak, Tahsil Huzur, District Bhopal (M.P.) 2. State of M.P. through Collector, Bhopal (M.P.) ................................................................................................ Appellant - Shri Dinesh Kaushal, Advocate Respondent No.1/ - Smt. Smita Arora, Advocate. Plaintiff Respondent no.2/ - Shri D.K. Mishra, Panel State Lawyer ................................................................................................ J U D G M E N T (28/09/2011) 1. This second appeal has been filed at the instance of defendant. 2. A suit for declaration of Bhumiswami right and injunction was filed by the plaintiff (respondent no.1 herein) 2 S.A. No. 2435/2005 against the first defendant-appellant. In that suit the appellant filed written statement and also filed counter claim claiming possession of the suit property which is an agricultural land and further a decree of injunction that after the possession is restored to the defendant, plaintiff should not interfere in her possession. The defendant in her counter claim has also claimed compensation of Rs.6,500/-. 3. The learned Trial Court framed necessary issues and after recording evidence of the parties decided all the issues against the plaintiff and the issues which were framed in respect to counter claim, were decided in favour of first defendant-appellant. The learned Trial Court further came to hold that because plaintiff sold the suit property by executing a registered sale deed in favour of first defendant for a consideration of Rs.1,91,400/- therefore the plaintiff is required to pay ad valorem court fee because he is seeking cancellation of the sale deed in which he was a party, being vendor. The learned Trial Court further held that as it had no pecuniary jurisdiction to try the suit and hence returned the plaint to the plaintiff to file it before the Court having pecuniary jurisdiction. However, the learned Trial Court 3 S.A. No. 2435/2005 passed the judgment in favour of first defendant so far as her counter claim is concerned. 4. The plaintiff and the first defendant preferred their respective appeals before learned First Appellate Court and both the appeals were dismissed by passing a common impugned judgment. 5. In this manner, this second appeal has been filed by appellant-defendant, which was admitted by this Court on 17.10.2007 on the following substantial question of law:- “Whether the counter claim lodged by the appellant was maintainable inspite of return of the plaint filed by respondent no.1 ?” 6. The contention of Shri Dinesh Kaushal, learned counsel for the appellant is that after the full trial, the learned Trial Court on the basis of oral and documentary evidence placed on record decided all the issues against the plaintiff-respondent no.1 and found that the counter claim of the defendant is proved and eventually passed the judgment in her favour holding that issues which are in respect of counter claim are proved by the defendant- appellant while the issues which are framed in respect of plaintiff's case are not proved by the plaintiff. Thus, the 4 S.A. No. 2435/2005 counter claim which was decided after holding a full trial holding that counter claim is allowed a decree should have been drawn up by learned Trial Court. In this context, learned counsel for the appellant has invited my attention to Order VIII Rule 6A and 6C of CPC and thus has prayed that learned First Appellate Court erred in error of law in not allowing the appeal of appellant by directing to draw a decree in favour of first defendant (appellant herein). 7. On the other hand Smt. Smita Arora, learned counsel for the respondent-plaintiff argued in support of the impugned judgment and submitted that the learned First Appellate Court has categorically held that defendant was required to seek declaration and further he should also pay ad valorem court fee because he is claiming possession of the suit property and therefore counter claim of the defendant exceeds pecuniary jurisdiction of Civil Judge, Class II and hence the judgment passed by the learned First Appellate Court cannot be said to be erroneous. In support of her contention learned counsel has placed reliance on the decision of Supreme Court Abdul Hamid Shamai Vs. Abdul Majid and others AIR 1988 SC 1150 5 S.A. No. 2435/2005 and Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayangar AIR 1965 SC 338. 8. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law framed:- 9. It is pertinent to mention here that against the dismissal of first appeal of plaintiff he did not prefer second appeal before this Court and therefore, the findings given by learned two Courts below to return the plaint to the plaintiff- respondent no.1 to file a suit in a court having pecuniary jurisdiction has attained finality. 10. In the instant case, the plaintiff filed a suit for declaration and injunction in respect of certain agricultural land, the description whereof has been mentioned in the plaint. According to the plaintiff-respondent no.1, he is the Bhumiswami of the suit property and is also in possession of the suit property, but, the first defendant is trying to interfere in his possession under the pretext of a registered sale deed dated 12.2.1999 executed by plaintiff in her favour for a consideration of Rs. 1,91,400/-. According to the learned Trial Court, since the plaintiff is a party to the 6 S.A. No. 2435/2005 sale deed therefore he is bound to pay ad valorem court fee because he is seeking a decree to cancel the sale deed. Hence it was held that plaintiff should have filed her suit in a Court having pecuniary jurisdiction to hear the suit having valuation of Rs.1,91,400/-. The learned Trial Court on the basis of the evidence placed on record decided all the issues against the plaintiff holding that he is not the Bhumi- swami of the suit property and by executing a valid sale deed he sold the suit property (agricultural land) to the first defendant-appellant. 11. The learned Trial Court further came to hold that the counter claim of defendant is to be allowed and found that the issues framed in respect to the counter claim are proven by first defendant and her witnesses. However, although the counter claim of appellant was allowed but a decree was not drawn up. Hence both the parties preferred first appeal before learned First Appellate Court. The first appeal No. 29-A/2005 was filed by defendant while another appeal no. 30-A/2005 was filed by plaintiff Jairam. The defendant's appeal was in respect of action of learned Trial Court in not drawing up the decree although the counter claim of first defendant was found to be proven. The first appeal which 7 S.A. No. 2435/2005 was filed by plaintiff was in respect of his claim which has not been found to be proven by the learned Trial Court and further it was held that it had no pecuniary jurisdiction and the plaintiff has not paid the court fee according to the valuation of the sale deed which is Rs.1,91,400/-. 12. Although learned Trial Court passed the order to return the plaint to the plaintiff to submit it before the appropriate Court having pecuniary jurisdiction, but same has not yet been filed in the competent Court. Thus, in the eye of law today there is no suit of plaintiff pending. In these facts and circumstances, when after the entire trial was over deciding all the issues which were framed in respect of plaintiff's suit were decided against him and the issues framed in respect of counter claim filed by first defendant- appellant has been decided in her favour and that too after recording the evidence of the parties on all issues, certainly a prejudice as well as hardship will be caused to the defendant because if the plaintiff fails to present the plaint before the competent Court in that case her counter claim which has been found to be proven after recording oral and documentary evidence would go in vein which is not at all permissible. Learned counsel for plaintiff-respondent no.1 8 S.A. No. 2435/2005 could not point out any such law. If fresh suit is now filed by first defendant (appellant) for possession, it will create anomalous situation which is not permissible and this is not the intention of law. 13. On bare perusal of Order VIII Rule 6 A, this Court finds that defendant can file a counter claim subject to limitation mentioned in this rule with a rider that counter claim should not exceed the pecuniary limits of jurisdiction of the Court. The first defendant has valued the counter claim for restoration of possession to the tune of Rs.252.40/- and for compensation she has valued her counter claim for Rs.6,500/- and had paid court fee 20 times of the land revenue for restoration of possession which comes to Rs.26/- and further paid ad valorem court fee for compensation. The first defendant further valued her suit for injunction by valuing it to be Rs.252.40/- and paid court fee of Rs.60/-. 14. The plaintiff in his written statement against the counter claim pleaded that because defendant has claimed relief of possession of the suit property therefore, she is required to value her counter claim according to the market value and is further required to pay ad valorem court fee. 9 S.A. No. 2435/2005 15. I do not find any merit in the contention of learned counsel for plaintiff-respondent no.1 that first defendant- appellant is required to value her counter claim for Rs.1,91,400/- and should also pay ad valorem court fee. 16. Indeed, the suit property is an agricultural land and first defendant-respondent no.1 has filed her counter claim for restoration of possession and valued her suit 20 times of the land revenue and accordingly paid ad valorem court fee which is in accordance to Section 7(v) (c) of the Court Fee Act, 1870 prevailing in Madhya Pradesh by incorporating the State amendment which reads thus:- Cl. (v) Substituted as follows- (v) For possession of lands, houses and gardens- In suits for possession of lands, houses and gardens, according to the value of the subject-matter; and such value shall be deemed to be -Where subject-matter is land, and (a) such land is assessed to land revenue or land revenue is payable in respect of such land-twenty times the land revenue so assessed or so payable; (b) *** *** *** (c) *** *** *** Since, the counter claim of first defendant is for possession of the agricultural land having assessed land revenue and therefore rightly by fixing the valuation of the counter claim 10 S.A. No. 2435/2005 she had paid ad valorem court fee on it and therefore the valuation which has been made by first defendant in her counter claim does not exceed the pecuniary jurisdiction of Civil Judge, Class II even if the counter claim for injunction and to award compensation is added to the valuation of the counter claim to restore possession of the suit property. Hence, I am of the view that learned Trial Court was having pecuniary jurisdiction to entertain the counter claim of first defendant-appellant and rightly it was entertained and allowed on merits after recording the evidence. 17. I do not find any merit in the contention of learned counsel for the respondent no.1-plaintiff that in para 14 of the impugned judgment passed by learned First Appellate Court, it has been held that first defendant-appellant was required to value her suit for Rs.1,91,400/-. The finding of learned First Appellate Court in this para has been presented by learned counsel in a twisted manner and by misconstruing the findings. On bare perusal of this paragraph it is luminously clear that learned First Appellate Court is giving finding that what should be the valuation of the plaintiff's suit and held that indeed a decree of declaration can be granted in favour of plaintiff only when 11 S.A. No. 2435/2005 he seeks relief to get the sale deed to be declared null and void and in that case only a decree of injunction can be granted in his favour. The learned First Appellate Court has fixed the valuation of the suit of plaintiff to be Rs.1,91,400/- in accordance to Section 8 of the Suit Valuation Act and further held that plaintiff was required to pay ad valorem court fee on this valuation. No where in para 14 it has been held by learned First Appellate Court that indeed the counter claim of defendant should also be valued to the tune of Rs.1,91,400/- and she should pay ad valorem court fee on this valuation. 18. I also further do not find any merit in the contention of learned counsel for the plaintiff-respondent no.1 that without seeking relief of declaration of Bhumiswami right, the counter claim of first defendant-appellant is not maintainable. The counter claim of first defendant is based upon title that she had bought the suit property for a consideration of Rs.1,91,400/- from plaintiff and there is a registered sale deed in her favour. However, later on she has been dispossessed by the plaintiff illegally and therefore in these state of affairs if the counter claim has been filed by her on the basis of title for restoration of 12 S.A. No. 2435/2005 possession of the suit property, it was not necessary for her (first defendant) to ask a decree of declaration of Bhumiswami right. 19. The finding of learned First Appellate Court in para 19 while interpreting Order VIII Rule 6-D is that because the suit of plaintiff is neither stayed nor discontinued and it has also not been dismissed, therefore counter claim of first defendant-appellant cannot proceed. According to me, this provision has been mis-interpreted by learned First Appellate Court. Admittedly, the plaint has been returned to the plaintiff to file it in the appropriate Court having pecuniary jurisdiction of Rs.1,91,400/- and therefore his suit shall be deemed to be discontinued. The term “discontinue” embodied in Rule 6-D is having great significance. This word has not been defined in the CPC and therefore I am obliged to examine the meaning of this word from various dictionaries. In the 'Major Law Lexicon' by P. Ramanatha Aiyar (4th Edition, 2010) at page 2034, the meaning of word “discontinue” is given which reads as under- “to cause to cease; to put a stop to.” The plaint of plaintiff has been returned to him to file it in the proper Court having pecuniary jurisdiction and therefore the suit has been ceased and has been stopped till plaintiff 13 S.A. No. 2435/2005 files it in the court having pecuniary jurisdiction. Similarly, the meaning of the word “discontinuance” is mentioned in the same book on page 2033 which reads thus:- “Default; a discontinuance in practice is the interruption in proceedings occasioned by the failure of plaintiff to continue the suit from time to time as he ought, or failure to follow up his case. A break or chasm in a suit arising from the failures of the plaintiff to carry the proceedings forward in due course of law.” On bare perusal of the explanation of the term 'discontinuance' it is clear that failure on the part of plaintiff to continue the suit and to follow up his case. Applying the said meaning in the instant case, because plaintiff was required to follow up his case and yet he had failed to continue it by not filing the plaint in the proper Court, it will amount to discontinuance. At page 2034, the term “discontinuance and non suit” has been explained which means:- “A discontinuance is somewhat similar to a non-suit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend.” 14 S.A. No. 2435/2005 Applying the aforesaid meaning and explanation in the instant case, because the plaintiff leaves a chasm in the proceedings of his cause by not continuing the process which he ought to have done by filing the plaint in the Court having pecuniary jurisdiction, it would mean that his suit is discontinued. 20. In Black's Law Dictionary by Bryan A. Garner (9th Edition) at page 532, the term “discontinuance” has been explained which reads thus:- “The termination of a lawsuit by the plaintiff; a voluntary dismissal or nonsuit.” Applying the meaning of the aforesaid term in the present case, the suit of plaintiff has been terminated by returning the plaint to the plaintiff. 21. The word “discontinue” has been further explained in the New Webster's Dictionary and Thesaurus & Medical Dictionary at page 116 according to which:- “to interrupt; to break off; to stop; to cease, discontinuance, discontinuation, interruption, cessation. discontinuity, want of continuity, discontinuous, intermittent.” Applying the aforesaid meaning in the present case, the plaint has been returned to the plaintiff for filing it before 15 S.A. No. 2435/2005 proper Court having pecuniary jurisdiction and thus continuity of the suit is stopped. 22. The term “discontinue” is also explained in Collins Cobuild Advanced Learner's dictionary (new Edition) at page 400 which reads thus:- “if you discontinue something that you have been doing regularly, you stop doing it.” By applying the aforesaid dictionary meaning in the present context, the plaintiff has discontinued his suit by not filing it in the proper Court which he was regularly proceeding and has stopped to proceed by not filing it in the proper Court. Hence, I am not having any scintilla of doubt in my mind that returning the plaint to the plaintiff to file it in the Court having pecuniary jurisdiction would come within the term 'discontinue' as envisaged under Rule 6-D of Order VIII CPC and therefore the legislature is very clear in its mind while enacting this rule that if a suit is discontinued, nevertheless the counter claim will proceed and hence the finding of the learned First Appellate Court holding that the suit of plaintiff does not come within the purview of the term 'discontinue' is misinterpretation of law. 16 S.A. No. 2435/2005 23. On going through the judgment passed by learned trial Court this Court finds that the counter claim of first defendant-appellant was found to be proven and the issues which were framed in respect to counter claim were decided in favour of first defendant-appellant and against the plaintiff and accordingly the counter claim was allowed. Indeed, a decree ought to have been drawn up, but, merely it was not drawn, it cannot be said that counter claim has not been decreed, because, drawing up a decree is a ministerial job and even if it was ordered by learned Trial Court to prepare the memorandum of cost it would not mean that the counter claim of first defendant-appellant has not been decreed. The term 'decree' has been defined in Section 2(2) of CPC which reads thus:- “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.- A decree is preliminary when further proceedings have to be 17 S.A. No. 2435/2005 taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. “ Needless to say, a decree is nothing but a formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Since the counter claim has already been allowed by learned Trial Court by decreeing the rights of first defendant and plaintiff (defendant in counter claim) in its judgment it will amount to a decree even if no formal decree was drawn up. 24. The decision of Supreme Court Abdul Hamid Shamai (supra) placed reliance by learned counsel for first respondent-defendant is in respect to putting arbitrary valuation of the suit by the plaintiff. But, this decision is not against the first defendant-appellant for the simple reason that she (the first defendant) did not value her counter claim arbitrarily, but has rightly valued according to reliefs which she has sought in her counter claim. Similarly the decision of Supreme Court in Athmanathaswami (supra) relied upon by learned counsel for respondent no.1 is not against the appellant because in this judgment it has been held by the 18 S.A. No. 2435/2005 Apex Court that if the civil court has no jurisdiction it cannot decide the suit on its merit, and in that situation the plaint should be returned to the plaintiff to file it before the proper Court. In the instant case since the counter claim has been rightly valued by first defendant-appellant which falls within the pecuniary jurisdiction of learned Civil Judge, Class II, therefore rightly it was entertained by the said Court. 25. The substantial question of law is thus answered that merely because plaint was returned to the plaintiff to file it in the Court having pecuniary jurisdiction, it cannot be said that counter claim of first defendant-appellant was not maintainable. 26. Resultantly, this appeal succeeds and is hereby allowed, the impugned judgment and decree passed by learned First Appellate Court holding that the counter claim of first defendant-appellant is not maintainable because plaint has been returned is hereby set aside and the counter claim of first defendant-appellant stands decreed. Let a decree be drawn up accordingly. Looking to the facts and circumstances of the case, parties are directed to bear their own costs. (A.K. SHRIVASTAVA) Judge rao 19 S.A. No. 2435/2005