JUDGMENT
N.K. Kapoor J.
1. The appellants are aggrieved by the judgment and decree dated 22.12.1989 of Additional District Judge Faridkot whereby the review application filed by the respondent has been allowed thereby affirming the judgment of the lower court with regard to the counter-clan, laid by Pritam Kaur.
2. Briefly, put, plaintiffs filed a suit against Pritam Kaur and Kartar Singh for declaration to the effect that they are owners in possession of land measuring 102 Kanals 12 Marias. As per allegation in the plaint, it was stated that the land was owned by Fauja Singh who died on 7.1.1980. The plaintiffs laid their claim on the basis of Will dated 12.10.1979.
3. Defendant Pritam Kaur in her written statement denied the various averments made by the plaintiffs in the plaint and it was further pleaded that she is the real daughter of Fauja Singh and so entitled to succeed to the estate of Fauja Singh. It was further stated that the possession of the plaintiffs was that of trespassers. In the pending suit, Pritam Kaur put up counter-claim for possession of the suit land.
4. On the pleadings of the parties, a number of issues were framed. Ultimately, the trial Court found no substance in the plea advanced by the plaintiffs Amar Singh and others and so dismissed their suit. The counter-claim of Pritam Kaur defendant for possession of the land in dispute was decreed vide judgment and decree dated 30.9.1985.
5. The appellate court affirmed the findings of the trial Court in respect of the claim laid by the plaintiffs i.e. they do not succeed to the estate of Fauja Singh. While considering the plea of the appellants with regard to the counter-claim set up by Pritam Kaur and accepted too by the trial Court, the appellate Court was of the view that since possession is being claimed, a separate suit ought to have been filed. Moreso, appropriate court fee has not been affixed upon the counter-claim. Resultantly, this contention of Amar Singh and others was accepted and so findings of the trial Court in respect of this issue was reversed. Thus while holding up the judgment and decree dated 30.9.1995, it was further held that Pritam Kaur is not entitled to get possession of the suit land by means of this suit.
6. Challenging the judgment and decree dated 22.12.1988 passed after reviewing the earlier judgment and decree dated 1.9.1987, counsel for the appellants termed it to be contrary to law and hence unsustainable. According to the counsel, in para No. 16 of the judgment dated 1.9.1987, Additional District Judge has held that it was incumbent upon Pritam Kaur to file a separate suit to seek possession and that no decree can be passed in her favour on the basis of counter-claim raised by her. Moreover, court fee has not been affixed upon the same. The learned counsel also argued that, in fact, Regular Second Appeal filed against the judgment and decree dated 1.9.1987 was dismissed by this Court and so the earlier judgment and decree stands merged. This being so, no such application could be filed in terms of Order 47 of the code of Civil Procedure (for short ‘the Code’) before the Additional District Judge for reviewing earlier decision nor such a judgment could be reviewed. This way too the judgment impugned is liable to be set aside.
7. Having heard learned counsel for the parties, I am of the view that the appeal merits dismissal. As per facts on record and otherwise too briefly noticed, the suit was filed by Amar Singh and others on the basis of will alleged to have been executed by Fauja Singh. Both the courts on reappraisal of evidence found the Will to be not a genuine document. On the other hand, the Court came to the conclusion-that Pritam Kaur being daughter of Fauja Singh alone succeed to the estate of Fauja Singh deceased. It is with a view to seek possession that Pritam Kaur defendant while filing written statement also raised a counter-claim. While raising the counterclaim, appropriate court fee too has been fixed. Precisely, for this reason, trial Court while dismissing the suit and finding substance in the counter-claim decreed the same.
8. The lower appellate court “while dismissing the appeal as well as dismissing the counter-claim mistakenly came to the conclusion that for relief of possession Pritam Kaur is to file a separate suit. The Court further held that the Court fee upon the counter-claim has not been properly affixed. As noticed above, latter observation of the Additional District Judge has been found to be factually incorrect. In fact, the counter-claim bears the stamps of requisite amount. Precisely, for this reason, Pritam Kaur sought review of the judgment and decree dated 1.9.1987 under Order 47 Rule 1(2) of the Code which reads as under :-
“A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
(Explanation : The fact that the decision on a decision of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.).
A bare perusal of the aforesaid provision makes it abundantly clear that such an application is maintainable by a person who has not filed an appeal from a decree or order. Since the appellant had not availed the remedy of appeal, review application was rightly entertained by the Court. As noticed by the lower appellate Court, the ; error that the counter-claim did not bear the court-fee stamps of the requisite amount was an error apparent on record and so the jurisdiction exercised cannot be termed to be unwarranted as not falling within the purview of Order 47 of the Code. Counterclaim as and when raised has to be decided by the Court even when the suit is decreed or dismissed. Thus, the dismissal of appeal does not debar the respondent from seeking review of the judgment or to file an appeal before an appropriate Court. The argument of the counsel that the judgment and decree dated 1.9.1987 having been affirmed by this Court, the same stands merged and so preclude the lower appellate Court from reviewing the judgment and decree is somewhat misconceived. In the present case, both set of claimants, one laying claim on the basis of Will (plaintiffs) and the other claiming herself to be daughter of the deceased Fauja Singh (by way of counter-claim) approached the Court for the relief sought. The trial Court while dismissing the suit of the plaintiffs allowed the counter-claim as raised by the defendant. The appellate Court while dismissing the appeal filed by the plaintiffs also dismissed the counter-claim of the defendant. On dismissal of the counter-claim, the aggrieved party had independent right of appeal and in case it has not availed the remedy of appeal could seek review of the order in terms of Order 47 Rule 1(2) of the Code. Precisely, for this reason, the aggrieved party approached the Additional District Judge for review of the order to the extent that the counter-claim was declined and . was able to establish the error apparent and so the order has been reviewed by the lower appellate Court. Since the respondent had independent remedy either to file an appeal or a review petition, dismissal of appeal in limine by this Court cannot be construed as a bar on the plea of merger as the same would amount to denying a party of his right to file appeal or review petition. The decision in case reported as The State of Maharashtra and Anr. v. Sh. Prabhakar Bhikaji Ingla, JT 1996(3) S.C. 567 is not applicable as per facts of the present case. Thus, finding no merit in the appeal, the same is dismissed. No order as to costs.