ORDER
1. A short but very interesting question has come up for decision in this revision.
2. By an order dt. 2-3-89 Munsif, 4th Court, Howrah found that the counter-claim preferred by the defendant in Title Suit No. 140 of 1985 was not maintainable. Being aggrieved by the order the petitioner prefers this revision.
3. The opposite party has raised a preliminary objection. It is urged that the order is a decree and therefore revision is not maintainable. An appeal shall lie if it is a decree, and in that event the order of the trial Judge is not open to challenge in this court which exclusively deals with revisions.”
4. Section 2(2) of Civil Procedure Code defines decree.
“Decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit……”
5. Relevant rules of O. 8 are reproduced.
“such counter-claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.”
(Rule 6A(2)).
“The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints”.
(Rule 5A(4)).
“If in any case in which the defendant set up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.”
(Rule 6D).
“The rules relating to written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.
(Rule 6G).
6. The counter claim therefore for all intents and purposes is a suit filed by one figuring as defendant in another suit filed by the plaintiff, so the dismissal of the counter claim on the ground that it is not maintain’ able amounts to dismissal of the suit.
7. In support of his plea the opposite party relies upon the decision in Nand Kumar Sinha v. Rai Bahadur Pashupati Ghosh, 42 Cri LJ 375 : (AIR 1941 Pat 385). In a suit for declaration, recovery of expenses and damages the trial court held that the suit was not maintainable against defendants 1, 2 and 6 since they purported to act in performance of their duty. Repelling the argument that the impugned order was one under O.1, R. 10, C.P.C. and so not appealable the High Court held that the decision of the learned Munsif on the preliminary issue finally negatived the claim of the plaintiff to get any damages against some of the defendants, and as between him and them the order must be considered to be a decree within the meaning of S. 2(2) of the Civil P.C. and therefore appealable.
8. It is urged that the preparation of a formal decree or otherwise is immaterial for determination whether a particular order constitutes a decree, I am referred to the decision in Kanji Hirajbhai Gondalia v. Jivaraj Bharamshi, which, according to the opposite party, lends support to his contention. The plaintiff sued for possession and arrears of rent. Trial Court held that the suit for possession was not maintainable for want of a valid notice. Trial Court refused to draw up a formal decree on the ground that a part of the suit had been disposed of on a preliminary issue and the other part of the suit viz. suit for rent was pending. It was held that the decision of the learned trial Judge so far as the relief for possession was concerned was a substantive decision or determination. It is a final adjudication between the parties in respect of a suit for possession. Order of the learned Trial Judge conclusively determined the righs of the parties on the question of eviction. It was further held whether an order passed by a court is a decree or not could not depend on the drawing up of a decree by the court as formal drawing up of a decree was the duty of the court. If a court did not draw up a decree it could not be said that the order of the court by which rights of the parties were finally adjudicated upon was not a decree.
9. The other decision of Mathura Prasad v. Kanhaiyalal (AIR 1941 Oudh 590) cited by Mr. Bhattacharya, counsel for the opposite party does not have much bearing upon the instant issue.
10. The ratio of the decisions in the other two cases cited by Mr. Bhattacharya is that an order conclusively determining the rights of the parties with regard to the entire matter involved in the suit or part of it will constitute a decree irrespective of failure to draw up a formal decree.
11. I have already opined that the counter claim is a suit for all intents and purposes. And the order of the learned Munsif finally disposes of the suit while he held that the counter claim was not maintainable. It is immaterial that no formal decree was drawn up in the instant case also.
12. The petitioner refers to decisions in Manas Ranjan Chakraborti v. Tropical Accumulators Ltd. , Chanmalswami Rudraswami v. Gangadharappa (AIR 1914 Bom 149) to urge that revision against the impugned order is maintainable. In both the cases the trial Judge overruled the plea of want of jurisdiction of the court. The decision of the court did not, it was held, constitute a decree and so it was not appealable. The decisions did not conclusively determine the rights of the parties although there was a matter in controversy. The court passed an interlocutory order only as distinguished from a decree.
13. Reliance is also very much placed upon a decision in Barkat Ram v. Sardar Bhagwan Singh (AIR 1943 Lahore 140) Division Bench held that the jurisdiction of the transferee court to execute the decree was not inherently lacking. It overruled the judgment debtors plea of limitation. Sale proclamation was held to be materially defective. Question arose whether the decision with regard to jurisdiction and limitation constituted decree. The questions were answered in the negative. Rights of the parties were not conclusively determined and in that view of the matter court was not inclined to call the decision a decree.
14. Two other decisions of our High Court have been cited to challenge the contention of the opposite party. In Sidheswar Biswas v. State of West Bengal (1976 (1) Cal LJ 470) Hon’ble Chittatosh Mukherjeej held that an order holding that the suit abated under S. 57-B, West Bengal Estates Acquisition Act was neither a decree nor an appealable order. In following the decision the Division Bench in Sudhabodh Misra v. State of West Bengal (1978 (1) Cal LJ 336) held that since the formal order of abatement under S. 57-B, West Bengal Estate Acquisition Act did not adjudicate upon the rights of the parties the order did not constitute a decree.
15. Ours is a completely different case. The defence laid a claim in a suit. The court finally dismissed the claim on a finding that the counter claim was not maintainable. It thereby finally adjudicated the rights of the parties involved in the cross-suit of the opposite party.
16. In view of my reasonsings set out above, I hold that the impugned decision constituted a decree and therefore revision does not lie. The revisional application is therefore rejected. Leave is granted to seek remedy in a proper forum according to law.
17. Petition dismissed.