Poonam Srivastav, J. - (1.) -Heard Sri Amit Saxena and Sri Umesh Vats, learned counsels for the appellants and Sri Pankaj Naqvi, learned counsel appearing for the caveator/ respondents.
(2.) TWO appeals arise out of common judgment and decree dated 24.2.2007 passed by the Additional District Judge, court No. 7, Bareilly, in Civil Appeal Nos. 17 of 1999 and 16 of 1999, Dan Singh and others v. Khaleel Higher Secondary School and another confirming the judgment and decree dated 16.12.1998 passed by the Additional Civil Judge (Senior Division) IV, Bareilly. The plaintiff/appellants instituted a suit for injunction. Relief claimed was for permanent injunction restraining the defendants from interfering in possession of the room in occupation of the plaintiffs. According to the pleadings, father of the appellants was working in the institution and he died in harness. The defendants had given an assurance to the late father of the plaintiffs that one of his heirs will be given an employment in the institution in case he dies during service and also that the plaintiffs will not be ousted from the room, which was in their occupation since life time of their father. The defendant/respondents filed a written statement as well as counterclaim for possession of the accommodation in question. The plaintiffs filed objection to the counterclaim preferred by the appellants. The suit, and appeal filed against the judgment of the trial court were dismissed as well. Learned counsel for the appellants has framed a number of substantial questions of law. He submits that counterclaim was not maintainable and could not be entertained on the ground that it was not properly valued and consequent court fee paid by the defendant/ respondents was deficient as well as the court had no jurisdiction. It is also submitted that counterclaim was not presented in the format as required under the law. The trial court framed as many as seven issues but questions raised before this court regarding valuation, payment of court fee, jurisdiction etc. were not considered and, therefore, though the trial court framed as many as seven issues but none of them relates to the questions raised in the instant appeal. The plaintiff/appellants raised question of maintainability of the counterclaim for the first time in the appeal before the District and Sessions Judge. The matter was not remanded for the reasons that the objections raised are all legal in nature and do not require any fresh evidence to be recorded and, therefore, the lower appellate court proceeded to decide the question itself. Learned counsel for the plaintiff/appellants has placed Section 4 of the Suits Valuation Act, 1887 (U. P. Amendment), which reads as follows ; "4. Valuation of certain suits for the purposes of jurisdiction,- Suits mentioned in the paragraphs IV (a), IVA, IVB, V, VA, VB, VI, VIA, VIII and X (d) of Section 7 and Articles 17, 18 and 19 of Schedule II of the court-fees Act, 1870, as in force for the time being in the Uttar Pradesh, shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by or the title to which is affected by the relief sought, or at the amount involved in or affected by or the title to which is affected by the relief sought, and such value shall, in the case of land, be deemed to be the value as determinable in accordance with the rules framed under Section 3.- Uttar Pradesh Act 7 of 1939, S.3 (w.e.f. 16-7-1939)"
(3.) IN this regard Rule (e) has been placed before this Court in support of his argument that since counterclaim was for possession of the land and building, value of the land was liable to be determined in accordance with Rules plus market value of such building or garden situated thereon. Next submission is that requirement of law while preferring counter-claim provided under Order 8, Rule 6A (2), C.P.C. is that it shall have same effect as a cross suit so as to enable the court to pronounce final judgment in the same suit, both on the original claim and counter-claim, and also that the counterclaim shall be treated as a plaint governed by the Rules applicable to the plaint. In the present case, the defendant/respondents filed a composite written statement and counter-claim, which are brought on record. Perusal of the counter-claim shows that later part of the written statement is counter-claim, valuation has been given, cause of action and relief has been mentioned as well as the court fee is paid. In the circumstances, I am not in agreement with the submission of the counsel for the appellants that the counter-claim was not in proper format and was liable to be dismissed on this ground alone. The lower appellate court has discarded objection of the plaintiff/ appellants on the ground that injunction suit was valued at Rs. 1,000 by the plaintiffs and the Court fee paid was Rs. 189.50 paise in accordance with Schedule 1 of the Court fees Act and, therefore, claim of possession by the defendants in the counter-claim was also for the same property and the lower appellate court recorded a categorical finding that no two different yardsticks can be adopted while assessing valuation of the same property, which is subject matter of the same suit. Perusal of the lower appellate court's judgment clearly shows that cogent reasons have been given while rejecting the objection of the plaintiffs.;