1  ( 2026:HHC:13228 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 79 of 2024 Decided on : 16.04.2026 Sunder Singh ….Appellant. Versus Godawari (deceased) through her LRs …..Respondents _________________________________ Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the appellant : Ms. Vidushi Sharma, Advocate. For the respondents : Mr. Devinder K. Sharma, Advocate. ___________________________________ Romesh Verma, Judge(Oral) The present Regular Second Appeal arises out of the judgment and decree as passed by the learned District Judge, Mandi,H.P. dated 02.01.2024, whereby the appeal filed by the present appellant was dismissed and judgment and decree as passed by the learned Civil Judge, Court No. 2, Mandi, District Mandi,HP, dated 23.06.2023 was affirmed, whereby the suit filed by the plaintiff/respondent was partly decreed and the counter claim as preferred by the defendant/present appellant was dismissed. 2. Brief facts of the case are that the plaintiff/respondent No.1 Smt Godawri (deceased) and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2  ( 2026:HHC:13228 ) others filed a suit for recovery of Rs. 8,60,000/- alongwith interest at the rate of 15% per annum. As per the averments as made in the plaint it was stated that the plaintiffs are owner in possession of land comprised in Khata Khatauni No. 392/495, Khasra No. 824, measuring 3-17-18 bighas, situated in Mohal Rewalsar,III, Bagra, Tehsil Sadar, District Mandi, H.P. It was averred that the plaintiffs intended to raise construction over this land but the strata of land was hilly, so the plaintiffs entered into a contract with the defendant on 06.05.2012 for making a plot, which contract was made between defendant and plaintiff No.1 Godawari. That the said contract was entered in the presence of the witnesses and the defendant agreed to complete entire work for a sum of Rs.6,00,000/- as per specification mentioned in the agreement. 3. Thereafter defendant started the work of making of plot and also demanded the money from the plaintiffs, as such, they have paid Rs. 3,30,000/- to the defendant from time to time. It was further averred that the plaintiffs requested time and again to compete the work as per stipulation made in agreement dated 06.05.2012 but the defendant did not pay any heed to the request of the 3  ( 2026:HHC:13228 ) plaintiff. Another agreement dated 03.12.2012 was executed when defendant asked the plaintiffs that he is suffering loss in the work and sought for fresh negotiation. As per the agreement dated 3.12.2012, the work was to be completed within specified period, failing which he would be held liable to pay double the amount to the plaintiffs. Further it was averred that after the execution of agreement dated 03.12.2012, the defendant worked for about 2-3 days in the said plot, but he failed to complete the work as per the terms and conditions. Therefore, suit for recovery was filed by the plaintiffs against the defendant for a sum of Rs.8,60,000/- along with interest at the rate of 15% per annum. 4. The suit was contested by the present appellant/defendant by raising various preliminary objections with regard to maintainability, non-joinder of necessary parties, estoppel, valuation etc. On merits, all the averments as made in the plaint were refuted. 5. It was submitted in the written statement that it is incorrect that the plaintiffs entered into contract with defendant on 06.05.2012 for making a plot. It was further submitted that it is correct that plaintiff No.2 entered into 4  ( 2026:HHC:13228 ) contract with the defendant for construction of a plot. It was denied that plaintiff No.1 got the contract made through plaintiff No.2 and that defendant entered into a contract for the construction of the plot. All the averments as made in the plaint were denied by the defendant. It was submitted that the place which was shown by plaintiff No.2 was on the road side and it was full of hard rock area. The defendant carved the plot according to the specification mentioned in recital of agreement and later on when plaintiff No.2 also felt himself that the construction site is hard rock area and the consideration was not sufficient, then plaintiff No.2 himself agreed to raise the construction amount a little more than the earlier consideration amount of Rs. 6,00,000/-. Further it was submitted that the defendant deployed three JCB’s for making the plot and cutting work, even more than to 60 feet in length and to one side the breadth of plot is 30 feet but to the other side breadth of the plot could be made up to 25 feet. 6. As per defendant, since the work was done by him during the rainy season as per contract and there had been so many landslides from the upper side of hill as such, the defendant had to deploy vehicles for taking away the 5  ( 2026:HHC:13228 ) mud and stones fallen from the upper side and in this manner the defendant sufferred a heavy loss. Though the defendant was doing the work on the spot but in the meantime, firstly the PWD department objected to the said construction on the part of the defendant but despite that, he continued with the construction and later on the PWD served notices upon him. It was further submitted that the forest department also came forward and objected for the construction and stopped the work of the defendant. It was submitted that he suffered losses while doing/executing the said work and that the plaintiffs defrauded the defendant while entering into this contract by showing the land of PWD and that of forest department, who are necessary parties in the suit. The defendant prayed for the dismissal of the suit. 7. Along with the written statement, the defendant filed counter claim by claiming that the plaintiff may be directed to pay a sum of Rs. 48,000/- by passing a decree in favour of defendant/counter claimant. 8. The plaintiffs filed replication to the written statement filed by the defendants as well as written statement to the counter claim. 6  ( 2026:HHC:13228 ) 9. The learned trial Court framed the issues in the matter on 30.07.2014. 1. Whether the plaintiff is entitled for the recovery of suit amount? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties as alleged? OPD 4. Whether the plaintiff is estopped to file the present suit against the defendant by his own act and conduct as alleged? OPD 5. Whether the plaintiff has no cause of action to file the present suit against the defendant? OPD 6.Whether the counter claimant/defendant is entitled for the recovery of 48,000/- as alleged? OPD 7.Whether the counter claim is not maintainable? OPP 8.Whether the counter claim is not properly valued for the purposes of Court fee and jurisdiction as alleged?OPP 9. Relief. 10. The learned trial Court directed the respective parties to adduce evidence in support of the contentions and vide judgment and decree dated 23.06.2023, the learned 7  ( 2026:HHC:13228 ) trial Court partly decreed the suit filed by the plaintiffs and dismissed the counter claim as preferred by the defendant. It was ordered that the plaintiffs are entitled to recover an amount of Rs. 6,60,000/- along with interest @6% per annum w.e.f 03.12.2012 i.e the date of the agreement Ext.PW1/C from the defendant along with the cost of the suit till the realization of the whole amount. 11. Feeling dissatisfied, the defendant-Sunder Singh filed an appeal under Section 96 of C.P.C in the Court of learned District Judge, Mandi, District Mandi on 10.08.2023. The learned First Appellate Court vide its judgment and decree dated 02.01.2024, dismissed the appeal as preferred by the defendant /appellant. 12. Still feeling aggrieved, the defendant/appellant has filed the present Regular Second Appeal challenging the judgments and decrees as passed by the Courts below. 13. It is contended by Ms. Vidushi Sharma, learned counsel for the appellant that judgments and decrees as passed by the Courts below are not sustainable and liable to be quashed and set-aside. She submits that the suit filed by the plaintiffs has been wrongly partly decreed, and his counterclaim has been wrongly dismissed by the learned 8  ( 2026:HHC:13228 ) trial court. These findings have been affirmed by the learned First appellate Court and are not sustainable. She further submits that the Courts below have not taken into consideration the oral as well as documentary evidence placed on record. She submits that after dismissing the suit as filed by the defendant, the counter claim as preferred by the present appellant/defendant, needs to be decreed. 14. On the other hand, Mr. Devinder Kumar Sharma, learned counsel for the respondents has raised the objections of maintainability of the appeal, which was filed by the present appellant before the learned First Appellate Court as well as before this Court. He submits that on account of the decreeing of the suit and the dismissal of the counter claim, the defendant ought to have filed two appeals before the learned First Appellate Court as well as before this Court and in the absence of doing so, the appeal preferred before the learned First Appellate Court and before this Court is not maintainable keeping in view the exposition of law as laid down by this Court in case titled Ramesh Chand Vs. Om Raj, reported in 2022 (2) Shim. L.C. 1145. 9  ( 2026:HHC:13228 ) 15. It is further contended by the learned counsel for the respondents that in case it is found that the defendant ought to have filed two appeals before the learned First Appellate Court and before this Court, therefore, on that sole ground the present appeal deserves to be rejected. 16. I have heard learned counsel for the parties and have perused the record. With the consent of the parties the case is finally heard at the admission stage. 17. As per the provisions of Order VIII Rule 6(A) to 6(G) of the CPC, a defendant, in a suit, may, set up, the counter-claim against the claim of the plaintiffs regarding any right or claim, in respect of a cause of action, accruing to the defendant, against the plaintiffs, either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence, has expired. 18. As per the provisions of Order VIII Rule 6(A) to 6(G) of the CPC, such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court as the effect of the cross-suit and Counter Claim will be treated as the plaint, for which, the plaintiffs have right to file 10  ( 2026:HHC:13228 ) written statement, and when counter claim has been filed, the Court will pronounce the final judgment, not only in the suit filed by the plaintiffs, but in the suit filed by the defendant, i.e., the Counter claim. 19. The provisions of Order VIII Rule 6(A) to 6(G) of the CPC are very clear and are unambiguous and in view of the legal exposition of the law, it is no longer res- integra that the counter claim is the cross suit and the dismissal of the counter claim is a decree and the same is appealable. 20. The scope and nature of the Counter Claim have elaborately been discussed by the Hon’ble Supreme Court in Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang & Ors, reported in (1996) 4 SCC 699. Relevant Paragraph-5 of the judgment is reproduced as under:- “5. The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? it is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6-A(1) provides that a defendant in a suit may,in addition to his 11  ( 2026:HHC:13228 ) right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplified that 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. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai case of suit and cross suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal 12  ( 2026:HHC:13228 ) representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter- claim as a cross suit. The trial Court dismissed the suit and the counter- claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter- claim for settlement of their claim and defence in written statement as a cross suit. The counter- claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or 13  ( 2026:HHC:13228 ) claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needles protection, the legislature intended to try both the suit and the counter- claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter- claim. It is seen that the trial Court had not found it necessary to delete the counter- claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of 14  ( 2026:HHC:13228 ) action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter- claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided anddisposed of in the same suit. In Mahendra Kumar v. State of Madhya Pradesh where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.” 21. Similar view has again been reiterated by a three judge Bench of the Hon’ble Supreme Court in Satyender & Ors. Vs. Saroj & Ors., reported in 2022 Live Law (SC) 679. Relevant paragraph 16 of the judgment is reproduced as under:- “16. The other finding of Second Appellate Court regarding the counter claim of the defendants on Killa Nos. 6//18 and 23 is, however, correct and is based on right interpretation of Order VIII, Rule 6A of CPC. 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’ 15  ( 2026:HHC:13228 ) 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. Order VIII, Rule 6A reads as under:- [6A. Counter-claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court. (2) 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 counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints A counter claim can be set up only “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. 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 16  ( 2026:HHC:13228 ) Swami Satsang & Ors.). The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. But then it has certain limitations such as that the counter claim cannot exceed the pecuniary limits of the jurisdiction of the court, and that such counter claim must be instituted before the defendant has delivered his defence or before the time limit for delivering his defence has expired. More importantly, such a counter claim must be against the plaintiff! Evidently, in the present case the counter claim was not against the plaintiffs. Moreover, as the plaintiffs had not claimed any right over the property and the Killa Nos. 6//8 and 23 are not even a part of the suit property described in the plaint by 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.” 22. Perusal of the judgments reveals that a counter claim is to be treated as a plaint and the same is governed by the same rules applicable to a plaint. It has been held that a counter claim can be set up only against the claim of the plaintiffs; therefore, in substance, a counter claim is in the form of a plaint, and the dismissal of a counter claim is appealable. 17  ( 2026:HHC:13228 ) 23. Coming to the facts of the case, the learned Trial Court, vide its judgment and decree dated 23.06.2023, partly decreed the suit as filed by the plaintiffs and dismissed the counter claim as preferred by the counter claimant/appellant. 24. In a natural corollary decreeing of the suit and the dismissal of the Counter Claim shows that there were two decrees, one, by virtue of which, the suit of the plaintiffs was decreed and another, by virtue of which, the counter claim of the defendant was dismissed, in that eventuality, the defendant was required to file two separate appeals. 25. Therefore, in such circumstances, the material question which arises for determination, before this Court, is whether the single appeal filed by the defendant against the partial decreeing of the suit and the dismissal of the counter claim was maintainable and whether the defendant was required to file two separate appeals. 26. The said question came up for consideration before the Division Bench of this Court in case titled Ramesh Chand Vs. Om Raj, reported in 2022(2) Shim. L.C. 18  ( 2026:HHC:13228 ) 1145, wherein the Hon’ble Division Bench has enumerated certain principles in this regard. Relevant Paragraph-42 of the judgment is reproduced as under:- “42.The principles deducible from the afore- discussed law can be summarized as follows: (i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party; (ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal. (iii) When two suits though not consolidated but are decided by a common judgment, resulting into preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals; (iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals; (v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of res-judicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal; (vi) When however, two appeals are filed 19  ( 2026:HHC:13228 ) against a common, judgment passed by the trial Court, both by the plaintiff and the defendant, and are disposed of by the first appellate Court by modifying/ reversing/affirming judgment of the trial Court, the aggrieved party, would be required to challenge both by two separate appeals, in absence of which, non- filing of appeal against one shall attract bar of the principles of res- judicata against another. (vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res-judicata and such dismissal would satisfy the requirement of appeal being heard and finally decided on merits ‘ in a former suit’ for the purpose of attracting principles of res- judicata.” 27. Keeping in view, the exposition of law as laid down by Hon’ble Apex Court as well as the Division Bench of this Court, on account of non-filing of the separate appeal before the learned First Appellate Court, against the judgment and decree, passed by the learned Trial Court, attracts the principles of res-judicata before the learned First Appellate Court the defendant ought to have file two separate appeals. 28. The Hon’ble Apex Court in a similar situation in a case which has gone from this High Court in SLP (C ) D No.59467/2024 titled as Charan Singh versus Ram Saroop, decided on 03.02.2025, while dealing and deciding the same issue, came to the conclusion that reliance was 20  ( 2026:HHC:13228 ) rightly placed by the First Appellate Court on precedents to hold that a composite appeal was not maintainable in law but, at the same time, the First Appellate Court ought to have borne in mind that Courts exist for rendering justice albeit in accordance with law. The Hon’ble Apex Court held that once the First Appellate Court found correctly that challenge to the common judgment of the Trial Court had been laid in a composite appeal but it is the requirement of law to file two appeals with separate memorandum of appeal which had not been filed by the appellant, the Court ought to have at least alerted the appellant by making him aware of the requirement of law and giving him the liberty to file a separate memorandum of appeal. Further, it has been held in para-7 that in fact in terms of Order XLI Rule 1 of the CPC, the Appellate Court has the power to even dispense with the requirement of law of filing copy of the impugned judgment twice over if it is part of the memorandum of appeal already filed. It has been held that even if, after being alerted the appellant had failed to file a separate memorandum, the First Appellate Court would have been perfectly justified in dismissing the appeal. The Hon’ble 21  ( 2026:HHC:13228 ) Apex Court also held that it is not shown to them that any endeavor was made in that regard. 29. From the aforesaid principles of law laid down by the Hon’ble Apex Court, it is clear that the Court is required to alert the appellant regarding the requirement of law and afford him the liberty to file a separate memorandum of appeal. Since the First Appellate Court in that case failed to do so, the Hon’ble Apex Court examined the judgments of the High Court and the First Appellate Court and remitted the matter back to the First Appellate Court with liberty to the party to file a separate memorandum of appeal in accordance with law. 30. Taking into consideration the Legal Principle laid down by the Hon’ble Supreme Court, this Court is of the opinion that after setting aside the judgment and decree passed by the First Appellate Court dated 02.01.2024, the matter is remitted back to the learned First Appellate Court with liberty to the defendant/appellant to file an independent appeal within a period of four weeks from today. Once filed, the same shall be registered without limitation, being treated as a bar and both appeals shall thereafter be decided afresh on 22  ( 2026:HHC:13228 ) their own merits. 31. Consequently, the present appeal is liable to be allowed. After setting aside the judgment and decree dated 02.01.2024, as passed by the learned District Judge, Mandi, District Mandi in Civil Appeal No. 40 of 2023, titled ‘ Sunder Singh vs. Godavari (since deceased) through legal representatives the parties are relegated to the Court of First Appeal. 32. It is directed that if the respondents prefer an independent, separate appeal within a period of four weeks from today, both Civil Appeal No. 40 of 2023 and the new appeal shall be decided together expeditiously. It is made clear that if the present appellant fails to do so within four weeks from today, he shall lose the benefit of this order. 33. Therefore, after allowing the present Regular Second Appeal, the appeal is remitted to the Court of the learned First Appellate Court by restoring it to its original number, to be decided alongside the other appeal, if any, filed by the present appellant. Parties are directed to remain present before the learned First Appellate Court on 15.05.2026. 23  ( 2026:HHC:13228 ) The pending application(s), if any, also stands disposed of. (Romesh Verma), Judge 16th April, 2026 (veena)