DILIP Vs. LEELADHAR

JUDGEMENT

(1.) In present petition filed as writ petition under Article 226 & 227 of the Constitution of India, Petitioner Plaintiff has challenged the order dated 15/2/2010 passed below Ex. 101 by Joint Civil Judge, Junior Division, Warud, rejecting his application to transfer Regular Civil Suit No. 119/2000 filed by him for specific performance along with counterclaim of Defendants for his eviction, for possession and damages to the court of Civil Judge, Senior Division, Amravati. The transfer is sought by pointing out claim in suit valued at Rs.70,600/and claim in counterclaim valued at Rs.40,000/together being above Rs. One lac, exceed the pecuniary jurisdiction of court of Junior Division. Trial Court has found that immovable property involved in specific performance and in eviction or recovery of possession proceedings is same and can not be clubbed or added again to determine its jurisdiction. Notice for final disposal is already issued by this Court. Hence, heard finally by making Rule returnable forthwith.

(2.) Advocate Deshpande has relied upon "Pampara Philip v. Koorithottiyil Kinhimohammed", 2007 AIR(Ker) 69and the decision of Hon'ble Full Bench of that Court in A. Z. Mohammed Farooq v. State Government, 1984 AIR(Ker) 126. He has pointed out the observations of Hon'ble Full Bench to show that claims in suit and counterclaim need to be added together to find out the subject matter of suit and on it depends the pecuniary valuation relevant for deciding the pecuniary jurisdiction. Application at Exh.101 for transferring the suit filed before trial court and at annexure "A" before this Court effectively discloses his line of argument. Advocate Malode has relied upon Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., 2009 8 SCC 646 to contend that right of appeal and act of filing suit or counterclaim stand on entirely different footing. He has supported the impugned order. Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn. (supra) deals with vested right of appeal and states that a plaintiff in a suit has a vested right of appeal. The said right is determined keeping in view the date of filing of the suit. Such a right of appeal can be taken away by express provision. With respect, I find that this ruling does not lay down any law relevant for present controversy.

(3.) In "Pampara Philip v. Koorithottiyil Kinhimohammed", supra, relied upon by Advoate Deshpande, O.8, R.6A(1), O.20, R.19(2), S.13 of CPC are considered. Facts disclose that there the counter claim by defendant was dismissed and plaint claim was allowed. It is held by learned Single Judge that the defendant need not file separate appeal but Single Appeal before High Court challenging both findings is maintainable. It is held that suit and counter claim in proceedings being unified proceeding, valuation of appeal would be combination of suit plus counterclaim. In para 5 of this ruling, the decision of Hon'ble Full Bench of that Court reported in A.Z. Mohammed Farooq v. State Government (supra) and also relied upon before me is looked into. Appeal filed in High Court and considered by Full Bench there was by plaintiff challenging the grant of counterclaim of the defendant. Defendant challenged the forum and raised a contention that forum for appeal was to be ascertained on the basis of plaint claim. But in that case the subjectmatter of the counterclaim itself exceeded Rs. 10,000/and therefore the Full Bench did not decide the question. The Hon'ble Full Bench considers the implication of Order VIII, Rule 6A to 6G and in paragraph 17 refers to the fact that the counterclaim should be treated as a plaint and governed by the rules applicable to plaints. In paragraph 18 it is observed that "having regard to the aforesaid provisions, it is possible to hold that the 'subjectmatter' of the suit would be the aggregate of the amounts claimed on the plaint and in the written statement by way of counterclaim". Therefore, the subjectmatter of an appeal to be preferred under Section 52 of the Court Fees Act, is held to be the aggregate of the amounts claimed on the plaint and written statement to govern the appellate jurisdiction. The Hon'ble Full Bench also considers the judgment of Hon'ble Madras High Court pressed into service by Petitioner before me. The question whether suit claim and counterclaim are independent proceedings or unified proceedings is considered in T. K. V. S. Vidyapoornachary Sons v. M. R. Krishnamachary, 1983 AIR(Mad) 291. Hon'ble Full Bench has borrowed following portion of Madras judgment which reads as follows :