No Substantial Question Of Law Required To Be Framed In State Of Haryana In Second Appeal – Supreme Court

The three-judge Bench of Justice of UU Lalit, Justice S. Ravindra Bhat, and Justice Sudhanshu Dhulia observed that since Section 41 of the Punjab Courts Act, 1918 is applicable in the State of Haryana and not Section 100 of CPC, a substantial question of law is not required to be framed in the second appeal.

The Court held –

"…State of Haryana formally adopted the laws of the erstwhile State of Punjab, under Section 89 of the Punjab Re-Organisation Act, 1966. Therefore, 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 Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. Consequently, it was not necessary for the High Court to formulate a substantial question of law."

The Bench further also noted that the laws applicable in Punjab in the year 1918, were also applicable to the present territory of Haryana since it was then a part of the State of Punjab. Later on, after the creation of the new State of Haryana, under the provision given in Section 88 of the Punjab-Re-organization Act, 1966, the laws applicable in the erstwhile State of Punjab continued to be applicable in the new State of Haryana.

The Bench headed by Justice UU Lalit also added that the formulation of a substantial question of law was not necessary, yet Section 41 of the Punjab Courts Act, 1918 requires that only such decisions are to be considered in the second appeal which are contrary to law, or to some custom or usage having the force of law or the Courts below have failed to determine some material issue of law or custom or usage having the force of law.

In this context, the Court further asserted –

"Therefore, what is important is still a "question of law". In other words, second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court."

In this case, proceedings were initiated by the Plaintiffs-Respondents for declaration and possession on an agricultural land. The Plaintiffs had claimed ownership over the property in dispute. Their case was 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 /landlords hence, two defendants were liable to be evicted and the possession of the land was to be handed over to the Plaintiffs.

Defendant No. 2 had filed a separate Written Statement and in addition to it, a counter claim was raised by him. He claimed in his written statement 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. In other words, their counter claim on the above two mentioned plot numbers was in addition to the claim on the plots as mentioned by the Plaintiffs.

The Trial Court had ultimately dismissed the suit on the findings that Plaintiffs could neither prove their right on the property, nor could they prove the fact that the defendant No.2 had created a sub-tenancy in favour of his son, i.e., defendant No.1. The counter claim set up by the defendant No. 2 was decreed.

The First Appellate Court to held that there was a heavy burden on the appellants to prove that the tenancy of Defendant No. 1 had come to end. This could not be proved by the Defendants. Regarding the counter claim of the Defendant No. 1, it was held by the First Appellate Court that it was rightly decreed by the Trial Court.

The matter was taken up in second appeal by the Plaintiffs, which was partly allowed. The High Court had upheld the findings of the First Appellate Court and Trial Court on the sub-letting and tenancy and upheld the findings of the lower courts in favour of the defendants as there was no subletting of the land, yet in the same breath the High Court has allowed the claim of the plaintiffs on the two plots i.e., 21//3/2 and 7//13 for the reasons that for these two plots though the plaintiffs had raised their claim and the defendants had not raised any counter claim on these plot numbers, which went uncontested.

The High Court had 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 in respect of the two plots and therefore under provisions of Order VIII, Rule 6A of CPC, an independent counter claim having nothing to do with the Plaintiffs can never be allowed.

Aggrieved, the Appellants-Defendants approached the Supreme Court.

With respect to the finding of the Second Appellate Court regarding the counter claim of the Defendants on the two plots, the Court held that it was correct and was based on the right interpretation of Order VIII Rule 6A CPC.

The Court noted, "From the pleadings of the plaintiffs, it is clear that they had never raised any claim on Killa No. 6//18 or Killa No. 23. The defendants in their written statement while denying the rights of the plaintiffs on the land of which particulars had been given by the plaintiffs, quite ingeniously inserted the two Killa Nos.6//18 and 23, setting a counter-claim on these plots. The Trial Court and the First Appellate Court while dismissing the plaintiffs' suit had allowed this claim for without assigning any reasons. In fact, this counter claim which was raised by the defendant is barred under Order VIII, Rule 6A of the CPC."

The Bench further also added that a counter claim can only be set up "against the claim of the Plaintiffs."

"Since there was no claim of the plaintiffs regarding Killa No. 6//8 and 23, the defendants were barred to raise any counter claim on these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has nothing to do with the plaintiffs," the Court observed.

However, the Bench also held that it is true that a counter claim can be made by the Defendant, even on a separate or independent cause of action [Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors.].

The Court held that in the case, the Plaintiffs did not claim any right over the property and the two plots were not even a part of the suit property described in the plaint of the Plaintiffs.

"Despite the same, such a claim has been allowed against the plaintiffs. In fact, we do not find on record any reply submitted by the plaintiffs against the counter claim. To be fair, such a counter claim should have been excluded in terms of Order VIII, Rule 6C of the CPC. Suffice it to state here that the counter claim set up by the defendants has been rightly rejected by the High Court," the Court noted.

Accordingly, the Court set aside the judgment passed by the High Court to the extent that it has decreed the claim of the Plaintiffs of the two plots and disposed of the appeal.

Cause Title - Satyender & Ors. v. Saroj & Ors.

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