Civil Procedure Code, 1908
Section 100 and Section 41 of the Punjab Courts Act, 1918—Second appeal—Substantial question of law—Dispute over property situated at District Bhiwani—Though under Section 41 of the Punjab Courts Act the requirement of formulation of a substantial question of law is not necessary, yet Section 41 of the Act, requires that only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law—What is important is still a “question of law”—Second appeal is not a forum where a court has to re-examine or re-appreciate the questions of fact—Plaintiffs had claimed rightly over certain agricultural land against defendants allegedly their tenants—Courts below after evaluating the evidence hold that the second defendant and his brother (who were not made party) were the tenants on the property and property was not sub let—Plaintiffs failed to prove their case as owner of the land in dispute—Second Appellate Court erroneously gave an entirely new finding regarding ownership of other properties in favour of plaintiffs—Untenable—Merely because 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—Plaintiffs have to prove their case on the strength of their evidence—Reasoning given by Second Appellate Court for decreeing the claim of the plaintiffs for other properties is incorrect and to that extent is liable to be set aside.
[Paras 14 & 15]
Order 8 Rule 6A—Counter-claim by defendant—Suit for declaration and possession by plaintiff over the property in possession of defendant—Defendant filed counter claim over the other properties—From the pleadings it is clear that plaintiffs never raised any claim upon those properties—Both the lower courts allowed the counter claim of the defendant without assigning any reasons while the High Court rejected the counter claim—Challenged—A counter claim can be set up only “against the claim of the plaintiffs”—Since there was no claim of the plaintiffs, the defendants were barred to raise any counter claim in view of Order 8 Rule 6A of CPC as it has nothing to do with the plaintiffs—Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation—Besides other ingredients one ingredient is, such a counter claim must be against the plaintiff—Admittedly the plaintiffs had not claimed any right over the property upon which the defendant filed counter-claim—Counter-claim has been rightly rejected by the High Court.
[Paras 16 & 17]