SATYENDER AND ORS. versus SAROJ AND ORS

Citation: [2022] 13 S.C.R. 342 · Decided: 17-08-2022 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Disposed off

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 13 S.C.R.
SATYENDER AND ORS.
v.
SAROJ AND ORS.
(Civil Appeal No. 4833 of 2022)
AUGUST 17, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
SUDHANSHU DHULIA, JJ.]
Code of Civil Procedure, 1908: Or.VIII, r.6A – Counter Claim
– Plaintiffs (respondents) filed suit for declaration and possession
on agricultural land claiming that defendant No. 2 was their tenant
who had sub-let the land to his son (defendant No.1), without the
consent of the plaintiffs and hence, liable to be evicted – Defendant
No.2 filing a separate written statement denied that they were ever
tenant of the plaintiffs – A counter claim was also set up by defendant
No. 2 claiming that in addition to the Khasra and Killa numbers
given in the plaint, he was also in possession of two other Killa nos.
i.e., 6//18 and 23 – Trial Court dismissed the suit but allowed the
counter-claim – First appeal of plaintiff was also dismissed – High
Court partly allowed the second appeal of the plaintiffs by allowing
the claim of the plaintiffs on two plots i.e., 21//3/2 and 7//13 for the
reason that the claim on these plots by plaintiffs went uncontested –
High Court also held that the counter claims set up by the defendant
could not be decreed since the plaintiffs themselves had not set up
any claim whatsoever for these two plots, and therefore under
provisions of Or.VIII, r.6A, an independent counter claim having
nothing to do with the plaintiffs can never be allowed – Defendants
filed instant appeal – Held: The finding of the High Court regarding
two Killa Nos. 21//3/2 and 7//13 was erroneous as merely because
the defendant did not raise a counter claim on this property it would
not ipso facto mean that a decree ought to have been granted in
favour of the plaintiffs – The burden of proof was on the plaintiffs
to prove their case, which they failed – The finding of High Court
regarding the counter claim of the defendants on Killa Nos. 6//18
and 23 is correct and is based on right interpretation of Or.VIII,
Rule 6A of CPC as plaintiffs never raised any claim on Killa No. 6/
/18 or Killa No. 23 – Counter claim can be set up only “against the
claim of the plaintiffs” – Since there was no claim of the plaintiffs
[2022] 13 S.C.R. 342
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regarding Killa No. 6//8 and 23, the defendants were barred to raise
any counter claim on these Killa numbers in view of Or.VIII, r.6A of
the CPC as it has nothing to do with the plaintiffs – Judgment and
order passed by the High Court to the extent that it has decreed the
claim of the plaintiffs on Killa Nos. 21//3/2 and 7//13 is set aside.
Code of Civil Procedure, 1908: s.100 – In the State of
Haryana, a court in second appeal is not required to formulate a
substantial question of law, as what is applicable in Haryana is
s.41 of the Punjab Courts Act, 1918 and not s.100 of CPC – Punjab
Courts Act, 1918 – s.41.
Disposing of the appeal, the Court
HELD: 1. 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 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. [Para 10][350-F-G]
2.1 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.
However, in Pankajakshi, a Constitution Bench held that the
reasoning given in Kulwant Kaur for holding that Section 41 of
the Punjab Courts Act stood repealed was not correct. Section
97 of Amendment Act of 1976 provides that only such provisions
would stand repealed which were inserted in the principal Act
(i.e., Code of Civil Procedure, 1908), by a State Legislature or
High Court before the commencement of this Act (i.e., 1976
Amendment Act). As Section 41 of the Punjab Courts Act was
SATYENDER AND ORS. v. SAROJ 

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