Daisy A. Philipose, Jai George, M.Narendra Kumar, T Krishnan Unni, Advocates for the appearing parties.
Judgment/Order
K. Abraham Mathew, J—Where a suit in which a counterclaim was made was disposed of and two appeals were filed from the decree and the two appeals after consolidation were disposed of by a single judgment, is a single second appeal challenging the decisions in both appeals maintainable ?
2. The appellant filed a suit for a perpetual injunction in respect of 3.83 Acres of land against the respondent. The respondent raised a counterclaim for a perpetual injunction against the appellant in respect of the very same property. Both of them claimed possession of the property. The trial court found that the appellant is in its possession, and accordingly, it decreed the suit and dismissed the respondent's counterclaim. This was challenged by the respondent in two appeals. Both appeals were disposed of by a common judgment. The decree of the trial court was reversed. Now the appellant has filed a single second appeal. Learned counsel for the respondent raised the question of its maintainability as a preliminary objection.
3. Heard the learned senior counsel Sri.T.Krishnan Unni appearing for the appellant and Sri.M.Narendra Kumar, the learned counsel appearing for the respondent.
4. In Narhari & Ors. v. Shanker & Ors., (1953) AIR(Supreme Court) 419, which is one of the several decisions relied on by the appellant, two separate appeals were filed by two sets of defendants against the decree passed in a suit. One of the appeals was dismissed as it was filed beyond the prescribed period of limitation. It was contended that the other appeal was barred by the principle of res judicata. The Supreme Court approved the decision of the Lahore High Court in Mst Lachmi v. Mst.Bhuii, 1927 AIR(Lahore) 289 that where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up. The determining factor is not the decree but the matter in controversy.
5. Sheodan Singh v. Daryao Kunwar (Smt) ., (1966) AIR(Supreme Court) 1332, was a case where more than one suit were disposed of, from which different appeals were preferred. It has no application to the facts of this case.
6. In P. N. kesavan & Anr. v. Lekshmy Amma Madhavi Amma, (1968) AIR(Kerala) 154, two defendants preferred separate appeals challenging the decree passed in a suit. The appellate court passed two decrees. A single second appeal was filed. A Division Bench of this court took the view that if two appeals have been filed by two parties in a litigation arising out of one suit, one second appeal alone need be filed against both the decisions, for which it relied on the decision of the Supreme Court in Sheodan's case . Another decision that has been brought to my notice by the learned Senior counsel is of the Madras High Court Packirisamy Mudaliar & Anr. v. SriJianganathan Perumal & Ors., (1998) 2 M.L.J 42. Two suits were filed by the same party in respect of the very same property against the very same defendant. The first one was for a perpetual injunction and the second one for return of the amount paid in advance towards the sale consideration pursuant to an agreement for sale. The suits were disposed of by a common judgment. A single appeal was filed. The High Court of Madras took the view that the decrees in both suits may be challenged in a single appeal.
7. A counterclaim set up by the defendant in a suit shall have the same effect as a cross-suit, Order VIII Rule 6A declares. But that does not make the counterclaim a separate suit. It is only a claim made in a suit. The relief granted in respect of the counterclaim shall be incorporated in the decree in the suit and shall not be made subject matter of another decree, which is the mandate in Order x x Rule 19 CPC. Rule 20 in the said Order provides that notwithstanding the incorporation in the decree of the relief in respect of the counterclaim, the decree shall be subject to same provisions in respect of appeal to which it would have been subject if no counterclaim had been made.
8. When a counterclaim is disposed of independent of the suit, a separate decree has to be passed as happened in Rajni Rani v. Khairati Lal, 2014 Supp CivCC 520 (S.C.) , where the Supreme Court construed the order of rejection of the counterclaim as a decree.
9. Adivision Bench of this Court in Mathew v. Rajan, (2016) 1 KerLJ 526, it is not sufficient to challenge the decree in the suit, but it is necessary to challenge the decree in the counterclaim also. But it has not said that the decree in respect of the counterclaim can be challenged only in a separate appeal. A learned single Judge of this court in Girija v. Rajan, (2015) 2 CivCC 106 (Kerala) held that a party aggrieved by the decree passed in a suit in which a counterclaim has been made shall file two appeals, one in respect of the relief claimed in the suit and the other in respect of the counterclaim made in the written statement. This was impliedly overruled by a Division Bench in Cholapilakkal Abdul Nazer v. Kuttanparambath Klakshmana Das, (2016) 3 Kerala Law Times 450. The learned Judges took notice of the provisions in Order VIII Rule 6A and Order x x Rule 19 CPC and held that in such a case there is only one suit and one decree and a single appeal is maintainable.
10. In Sri Gangal Vmayagar Temple &Anr. v. Meenakshi Ammal& Ors., (2015) 3 SCC 624, a three Judge Bench of the Supreme Court has held: "Where a common judgment has been delivered in cases in which consolidation orders have been specifically passed we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again".
11. The conclusion is that when two appeals arising from a single suit are consolidated, and disposed of by a common judgment, it is sufficient for the unsuccessful party to file a single second appeal, the number of decrees drafted by the court being irrelevant.
12. In this case the field of controversy was the same in the suit as well as in the counterclaim. The trial court decreed the suit and dismissed the counterclaim. Though it could have been challenged in a single appeal, the party concerned filed two appeals. The appellate court consolidated the appeals and disposed them of by a common judgment. In this second appeal the appellant has challenged the adverse decisions rendered by the court below in both appeals. Separate court fees also has been paid. The appeal is maintainable.
13. The preliminary objection is overruled.