2011 AIR CC 849 (KER) ::(2011) 1 CivilCourtC 314 ::AIR 2011 (NOC) (SUPP) 344 (KER.) ::(2010) 4 Ker LT 538 ::(2011) 97 AllIndCas 446 (KER)

Kerala High Court

Hon'ble Judge(s): S. S. Satheesachandran , J

(A) Civil Procedure Code (5 of 1908) S. 11 and 100 — Three suits dismissed by common judgment — Three appeals arising out of such suits also dismissed by common judgment by lower appellate Court — Second appeal challenging only one appellate order arising out of one suit — Appellate order in respect of other suit, held would constitute res judicata — Second appeal dismissed as not maintainable (Para 7)

(B) Civil Procedure Code (5 of 1908) O. 8, R. 6 and O. 43, R. 22— Counter-claim in suit — Dismissal of suit and counter-claim — Appeal against dismissal of suit — Challenge to decree passed in respect of counter-claim has to be by independent appeal — Cross-objection in the appeal against dismissal of suit — Not maintainable {" A counter-claim raised in a suit has all the incidents of a plaint and even in the discontinuance of the suit by the plaintiff in which such claim was raised, the counter-claim has to be proceeded with. In answer to the counter-claim, the plaintiff in the suit has to file a written statement and the Court has to pronounce a judgment after trial on the counter-claim. Order 8, Rule 6(a) to (g) clearly spell out that an adjudication of the counter-claim as if it were a suit claim and pronouncement of the judgment leading to a decree is contemplated. The counter-claim, therefore, for all intents and purposes is a suit by a party figuring as a defendant in another suit filed by the plaintiff and so much so, even a dismissal of the counter-claim in the judgment rendered by the Court, after trial, that it is not maintainable, amounts to dismissal of a suit, as if such a suit had been filed by the defendant as against the plaintiff in whose suit a counter-claim was raised were the plaintiff. If that be so, can such a defendant, after dismissal of his counter-claim raised in the suit, impeach the corr....