BASUDEV VS. SANJAY KUMAR

2026 INSC 831Page 1 of 23

CA @ SLP (C) No.4338 of 2025

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. of 2026

(Arising out of SLP (C) No.4338 of 2025)

Basudev & Ors.

...Appellant(s)

Versus

Sanjay Kumar & Ors.

...Respondent(s)

J U D G M E N T

K.Vinod Chandran, J.

Leave granted.

2. The question to be answered in this appeal is as to

whether there should be two appeals filed from the two decrees

drawn up when a suit with a counterclaim is disposed of by a

single judgment. The ancillary question would also be whether

in every such situation two decrees should be drawn up.

3. In the present case, a suit was filed and a counterclaim

was raised. The Trial Court allowed the suit claim and

dismissed the counterclaim. A single appeal was filed by the

defendants; in which the suit was dismissed and the

counterclaim was allowed. The High Court in second appeal

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found that the single appeal was incompetent and relied on the

decision of a Division Bench in Ramesh Chand v. Om Raj and

Others1. It was held that in the nature of the disposal, decreeing

the suit and rejecting the counter claim, there ought to be two

separate appeals filed. In the teeth of the principle of waiver

and estoppel the single appeal will have to be rejected was the

finding. We are not concerned with the merits of the claims;

suffice it to notice that when the plaintiffs claimed half share and

sought for an injunction against interference, the defendants

raised a counterclaim of ownership over the entire property.

4. Sri Jayant Bhushan, learned Senior Counsel for the

appellants, would first point out that there is only one decree

drawn up which is produced at Annexure P-13. When the Court

itself had drawn up only one decree, the defendant’s appeal

filed, could not have been rejected is the argument. Reliance

was also placed on Narhari v. Shanker2 and Charan Singh v.

Ram Saroop3.

5. Sri Sanjay R. Hegde, learned Senior Counsel for the

respondents, relied upon Ramesh Chand1, as relied on in the

1 2022 (2) SLC 1145

2 1950 SCC 668

3 C.A. No.1585-1586 of 2025 dated 03.02.2025

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impugned judgment and specifically referred to Premier Tyres

Ltd. v. Kerala State Road Transport Corporation4. The

defendant does not dispute the position that there will be only

one decree, but there has to be two appeals filed, is the

contention.

6. We would first look at the decisions on this point, urged

by both the learned Senior Counsel; in the arguments

addressed and the written submissions.

7. Narhari2 dealt with a suit filed to establish 2/3rd rights

over a property against eight defendants, wherein two sets of

defendants, set up separate claims of 1/3rd rights each over the

suit property. The Trial Court decreed the suit and the two

separate appeals filed were allowed, dismissing the suit and

allowing the counterclaims. The plaintiff preferred two second

appeals, one, within time and the other, delayed. The delayed

appeal was dismissed on the ground of limitation and as a

consequence, the other appeal also stood dismissed, finding it

to be hit by res-judicata. This Court found the ground of res-

judicata to be specious, when there is only one suit, the decrees

founded on the same judgment, deciding the entire suit. It was

4 1993 Supp. (2) SCC 146

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found that the two decrees, in substance are one and besides,

the High Court had failed to give the benefit of Section 5 of the

Limitation Act, especially when there were conflicting

decisions on this question.

8. In Charan Singh3 the Trial Court dismissed the suit and

allowed the counterclaim against which only one appeal was

preferred, which was dimissed as not maintainable. This Court

found the requirement in law, to file two appeals, but went on to

permit the appellant to file a separate memorandum of appeal,

without a certified copy of the judgment since, Order XLI Rule

1 of the CPC permitted the Appellate Court to dispense with the

requirement of filing a copy of the impugned judgment twice

over even when two separate appeals are filed. This was

observed to be in furtherance of ends of justice, so that the

subject matter is considered on its merits.

9. In Girija and Ors. v. Rajan5 the High Court of Kerala

considered an identical substantial question of law as to

whether the single appeal filed from the dismissal of a counter

claim, without an appeal against the decree in the suit, would

fail on the ground of res-judicata. Reliance was placed on a

5 2015 (1) KLT 695

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decision of this Court in Premier Tyres Limited4 to extract the

following: -

“Where an appeal arising out of connected suits is

dismissed on merits the other cannot be heard and has

to be dismissed. Where no appeal is filed, as in this

case from the decree in connected suit, it has the same

effect of non-filing of appeal against the judgment or

decree. Thus, the finality of finding recorded in the

connected suit, due to non-filing appeal, precludes

the court from proceeding with appeal in other suit.”

10. The argument that the power of the Appellate Court under

Order XLI Rule 33 of the CPC was all encompassing, being a

continuation of the original proceeding, empowering it to pass

any decree or make any order and such further orders or

decree as the case may require, was negated. It was held that

the power under Order XLI Rule 33 cannot be invoked against

specific statutory provisions: namely, Section 11 of the CPC.

Res-judicata is non-negotiable and indefeasible, creating an

absolute bar against the Court from deciding a matter which

was substantially in issue and decided in a former case. State of

Punjab v. Bakshish Singh6 was relied on for the principle that

Order XLI Rule 33 is discretionary and in the garb of exercising

such power, the scope of appeal cannot be enlarged. Order VIII

6 (1998) 8 SCC 222

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Rule 6A of the CPC clothes a counterclaim with all the

characteristics of a cross suit, including the vulnerability of

suffering the bar of res-judicata enshrined in Section 11 of the

CPC, if not properly appealed, was the finding. The first appeal

filed in the said case against the decree passed in the suit was

held to be barred by res-judicata since the dismissal of the

counterclaim was not challenged.

11. Shankar Masu Dokare v. Shobha Subhash Dokare and

Anr.7 from the High Court of Bombay considered an identical

issue. Narhari2 was relied on to hold that, when there is one

suit and a counterclaim, there is only; one trial, one finding and

one decision and hence there need not be two appeals. Order

XLI Rule 1 of the CPC postulated only filing of one copy of the

judgment if the suits are tried together, even if two decrees are

passed. Order XX Rule 19 of the CPC posits that the decree

passed in a suit in which a counterclaim is filed, shall be subject

to the same provisions in respect of an appeal, if there was no

counter claim. This cannot be extended to contend that there is

requirement for filing of two appeals. Thus, the prayer in the

suit and the counterclaim are so interlinked that the

7 2014 SCC Online Bom 1859

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requirement was only to file one appeal, which is not in

contravention of any of the provisions of the CPC, was the

finding.

12. Abdul Nazer v. Lakshmana Das8 dealt with a defect noted

by the Registry, that one appeal would not suffice against two

decrees; one dismissing the suit and the other allowing the

counterclaim, based on Girija5. It was held, Rule 6A of Order

VIII of the CPC confers on the counter claim the same effect as

a cross-suit and it is to be treated as a plaint, by a legal fiction

employed by sub-rules (2) and (4) of Rule 6A CPC. Rule 19(1)

of Order XX CPC was also referred, to hold that homogeneity is

evident in the composite decree which has to state what amount

is due to the plaintiff and the defendant, with the sum for

recovery specified, which appears to be due to either the

plaintiff or the defendant. Rule 6C of Order VIII providing for

raising an objection against the counterclaim as being

independent of the original claim in the suit, clearly indicates

that it is a unified proceeding as held in T.K.V.S.

Vidyapoornachary Sons v. M.R. Krishnamahary9. The

decision in Girija5 was reversed in Abdul Nazer8 by a Division

8 2016 SCC OnLine Ker 41103

9 AIR 1983 Mad 291

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Bench and it was held that the single appeal filed would be

maintainable against the decrees respectively passed in the

suit and in the counterclaim.

13. The High Court of Madras in T.K.V.S. Vidyapoornachary

Sons9 held that though Order VIII Rule 6A speaks of a

counterclaim as a plaint at one place and a cross-claim at

another, the operative portion lays down that the court shall

pronounce a single judgment in the suit, both on the original

claim and on the counterclaim. Thus, a suit-claim and a

counterclaim are not distinctly apart and Rule 6C by implication

emphasizes that a suit-claim and a counterclaim constitute a

unified proceeding.

14. Ghanshyam Singh v. Narendra Singh10 from the High

Court of Uttarakhand relied on Rajni Rani & Another v. Khairati

Lal11 to hold that one composite appeal against the two

independent and distinct decrees; in the suit and a

counterclaim, would not be tenable since they are independent

proceedings. Immediately, we have to notice that we are

unable to agree that Rajni Rani11 propounded such a view.

Considerable reliance was placed on Rajni Rani11, in the

10 Second Appeal No.76 of 2022 decided on 22.07.2022 by High Court of Uttarakhand at Nainital

11 (2015) 2 SCC 682

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written submission of the respondents also, to uphold the

impugned judgment, despite accepting that there need be only

a single decree drawn up in the suit and the counter claim.

15. In Rajni Rani11 the suit for declaration of ownership was

resisted with a counterclaim, by some defendants, claiming to

be the real owners of the suit scheduled property, based on a

will. The other defendants sought dismissal of the counterclaim

on the ground that it was barred by Order II Rule 2 of the CPC;

since in an earlier suit between the same parties, with respect

to the very same property, the said claim was not raised. The

learned Trial Judge dismissed the counterclaim against which a

revision was filed under Article 227 of the Constitution of India.

This Court at the very outset made it clear that they would not

advert to the merits of the order and were only concerned

whether a revision petition could have been entertained or

whether it was obligatory to assail the order by way of an

appeal. Extracting Rule 6A, 6B and 6D of Order VIII of the CPC,

it was found that the counterclaim in the suit is in the nature of a

suit and even if the suit is to be dismissed, the counterclaim

would remain alive for adjudication. We cannot but observe

that this was not to declare that the suit could be dismissed at

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the first instance and then the counterclaim was to be

considered as an independent suit. In fact, the court

emphasized in Paragraph 9.6 that the very scheme of a

counterclaim is to avoid multiplicity, and the court is required

to pronounce a final judgment in the suit, both on the original

claim and on the counterclaim; the seminal purpose being to

avoid piecemeal adjudication.

16. In Gumai Singh v. Baburam12, the High Court of Madhya

Pradesh relied on Rajni Rani11 to find that a suit and a

counterclaim when disposed of by a single judgment, there are

two decrees drawn up, and both have to be appealed

separately in two different appeals. The High Court of Madras

in K. Kandasamy v. P. Natarajan & Others13, held otherwise,

that, a single appeal would be maintainable against a common

judgment rendered in a suit and a counterclaim, since Order

VIII Rule 6A of the CPC treats the counterclaim as a cross-suit

which culminates in a single judgment and a composite decree,

which does not necessitate multiplicity of appeals.

17. Ramesh Chand1, as relied on in the impugned judgment,

also found that where both the suit and the counterclaim are

12 Second Appeal No.144 of 2012 decided on 28.07.2025 by Madhya Pradesh High Court at Gwalior

13 2026 SCC OnLine Mad 14

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disposed of by a common judgment, regardless of whether

separate decrees have been prepared, there shall be two

appeals filed (Para 42 (iv)). The appellants argued that that this

would in fact be contrary to the principle enunciated in the very

same decision in Para 42 (i), that when two suits are

consolidated and tried together, the same can be subjected to

challenge by way of a single appeal, while, two suits, which

were not consolidated but are decided by a common judgment,

require a challenge by way of two appeals (Para 42(iii)). As held

in Rajni Devi11. It was found that there could be situations when

the suit is dismissed; in default or as withdrawn, then the

counter claim is continued.

18. The aforesaid decisions clearly indicate that there is a

cleavage of opinion, insofar as whether two appeals are

required to be filed when there is a suit and a counterclaim,

both being disposed of by a common judgment. There also

seems to be dissimilarity in the procedure adopted in the

different States, in drawing up the decree from a single

judgment, allowing one claim and rejecting the other, which

normally gives rise to two decrees. We are in full agreement

with the interpretation of Rule 6A to 6D of Order VIII of the CPC;

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inserted in 1976, as declared in Rajni Rani11. Rule 6A (1)

enabled a counterclaim against the claim in the plaint, in

addition to the right to plead set off. Sub-rule (2) enables the

counterclaim to be treated as a cross-suit, facilitating a common

judgment, both on the suit claim and the counterclaim. The

plaintiff is provided a right to file a written statement in answer

to the counterclaim, especially since the counterclaim is

deemed to be a plaint under sub-rule (4); governed by the rules

applicable to plaints. The rules relating to written statements

are also made applicable to the written statement in reply to the

counterclaim, by virtue of Rule 6G of Order VIII.

19. We also agree with the finding that when Rule 6C of

Order VIII excludes a counterclaim, when it is an independent

cause required to be agitated in an independent suit, it implies

that a counterclaim should be so interlinked with the suit claim

to facilitate adjudication of both; on the evidence led at one

trial. It is noticing Rule 6D, that, even if the suit is stayed,

discontinued or dismissed, the counterclaim may nevertheless

be proceeded with; that Rajni Rani11 expressed the opinion,

that a suit even if dismissed the counterclaim survives, which

was misinterpreted by two High Courts to find a requirement

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for two appeals from a common judgment adjudicating a suit

and counter claim.

20. We reiterate that in Ranji Rani11 the question was

whether the rejection of a counterclaim for reason of it being

barred by Order II Rule 2, has to be challenged in appeal or

whether a revision would lie under Article 227 of the

Constitution of India. The question of two appeals being filed

from a decree in the counterclaim and the suit, did not arise at

all since in Rajni Rani11 the suit was pending before the Trial

Court, and the counterclaim alone was rejected under order VII

Rule 11; which rejection order was amenable only to an appeal.

But there may arise occasions where there should be two

decrees drawn up, like in Rajni Rani11 itself. If the appeal

against the dismissal of the counter claim, on a decree drawn

up, is pending without a stay of the suit and eventually the suit

is either dismissed or allowed, then necessarily there should be

another decree drawn up, which would also have to be

subjected to an appeal.

21. In this context, we also notice Order XX Rule19 from

which sub-rule (1) was noticed in Abdul Nazer8, which applies

to a suit for recovery of money, when a counterclaim is also with

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respect to the money due. Rule 19(1) may not have application

in the very many cases we noticed, wherein the subject matter

of the suit was a claim and counterclaim with respect to

ownership and possession of immovable property. Apposite

would be sub-rule (2) of Order XX Rule 19, which indicates that

any decree passed in a suit, in which a set off or counterclaim is

raised, shall be subject to the same provisions applicable to a

suit in which no counterclaim is raised. It only indicates that

when a counterclaim is raised and decided, the appeal

provisions with respect to a decree in a suit would squarely

apply. It does not, according to us, either require that two

appeals have to be filed or by implication prohibit a single

appeal.

22. Here, we have to notice the judgment of this Court in

Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal

Kabrawala14, rendered in a slightly different context. Therein

one of the partners, filed a suit for enforcement of an

agreement, entered into with a deceased partner; resisted by

the legal representatives of the deceased, with a counterclaim

of settlement of accounts on dissolution of the firm. The Trial

14 AIR 1964 SC 11

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Court while dismissing the suit held the counterclaim to be not

permissible under the CPC, but left liberty to bring a separate

suit for accounts and share of the profits, if so advised. Even in

the absence of a provision enabling a counterclaim, it was held

by a majority that despite the counter claim raised not

confirming to the requirements of a plaint, as prescribed in the

CPC, it could as well be treated as a cross suit. It is not proper

to deny the court the power and jurisdiction to read and

construe the pleadings in a reasonable manner and consider

the claim raised, as would have been dealt with, if it was made

in the form of a plaint. Eventually the matter was restored to the

Trial Court permitting the defendant to file a fresh written

statement raising the counter claim satisfying the requirements

of a plaint, as provided in the CPC and the plaintiff given further

opportunity to controvert such pleadings by a written

statement. Laxmidas Dayabhai Kabrawala14 even in the teeth

of the unamended CPC, permitting only a cross suit, sans the

enabling provision to raise a counterclaim, directed the

counterclaim to be considered as a cross-suit. This very scheme

has been brought into operation after the amendment of 1976

in the CPC enabling a counterclaim by the defendant in a suit.

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23. In this context, we notice the concurring judgment in

Abdul Nazer8 noticing Owners and Parties Interest in M.V.

‘Vali Pero’ v. Fernandeo Lopez and Others15, as to the rule of

procedure, extracted herein: -

“Rules of procedure are not by themselves an end but

the means to achieve the ends of justice. Rules of

procedure are tools forged to achieve justice and are not

hurdles to obstruct the pathway to justice. Construction

of a rule of procedure which promotes justice and

prevents its miscarriage by enabling the court to do

justice in myriad situations, all of which cannot be

envisaged, acting within the limits of the permissible

construction, must be preferred to that which is rigid and

negatives the cause of justice. The reason is obvious.

Procedure is meant to subserve and not rule the cause of

justice. Where the outcome and fairness of the

procedure adopted is not doubted and the essentials of

the prescribed procedure have been followed, there is

no reason to discard the result simply because certain

details which have not prejudicially affected the result

have been inadvertently omitted in a particular case. In

our view, this appears to be the pragmatic approach

which needs to be adopted while construing a purely

procedural provision. Otherwise, rules of procedure will

become the mistress instead of remaining the handmaid

of justice, contrary to the role attributed to it in our legal

system.”

24. Section 96 of the CPC provides an appeal from every

decree leading to the unequivocal declaration of law by the

15 (1989) 4 SCC 671

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High Courts and this Court, that an appeal is from a decree and

not from a judgment. Order XLI Rule 1 as it was before the

amendment in 01.07.2002 also required the Memorandum of

Appeal to be accompanied by a copy of the decree. As of now,

the word ‘decree appealed from and (unless the Appellate court

dispenses therewith) of the judgment on which it is founded’ has

been substituted with the word ‘judgment’ in Order XLI Rule 1

with effect from 01.07.2002. The intention of the legislature is

very clear that the delay in drawing up decrees shall not

frustrate the appellate remedy and there should be an end to

multiplicity of proceedings.

25. Immediately, we have to notice Rule 6A of Order XX, CPC

having the nominal heading of ‘Preparation of decree’. Sub-rule

(1) speaks of expeditious drawing up of a decree, at any rate,

within fifteen days from the date of pronouncement of

judgment. Sub-rule (2) permits an appeal to be preferred, with

a judgment, if a decree has not been drawn up, which shall for

the purposes of Rule 1 of Order XLI be treated as a decree. It is

also provided that as soon as a decree is drawn up, the

judgment shall cease to have the effect of a decree for the

purpose of execution or for any other purposes. The provision

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insofar as an appeal is concerned is redundant since Rule 1 of

Order XLI permits an appeal to be filed accompanied by a

judgment. Hence, sub-rule (2) of Order XX Rule 6A only applies

insofar as execution, as of now.

26. In this context, we have to notice that before the

amendment brought to Rule 6A of Order XX by Act 46 of 1999,

it provided that “the last paragraph of the judgment shall state in

precise terms the relief which has been granted by such

judgment’(sic). This stood omitted by Act 46 of 1999, the

consequence of which came up for consideration before the

Andhra Pradesh High Court in Faqruddin v. Didde

Mahadevappa and Others16. Therein the suit was filed for

declaration of title, recovery of possession and consequential

injunction. The suit was fully decreed but however in the

operative portion of the judgment, recovery of possession was

omitted, which hence did not figure in the decree also. On

execution being filed, recovery was objected to, on the trite

principle that the Execution Court cannot go beyond a decree.

A learned Single Judge of the High Court agreed with the

objection, but gave liberty to the plaintiff to approach the Trial

16 2004 (5) ALT 469

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Court under Section 152 of the CPC for correction of the decree.

The learned Single Judge noticed that the omission of that

portion in Rule 6A created more problems than it resolved. It

was also noticed that simultaneous to the said omission Order

XLI Rule 1 was also amended, facilitating an appeal to be filed

accompanied by a copy of the judgment and not the decree.

Thus, confining the application of a decree to the execution

proceedings.

27. Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan17 though

rendered after the amendment, did not notice the omission

made in Rule 6A. Therein, the High Court had in Second Appeal

overturned a concurrent decision of the Trial Court and the

Appellate Court but allowed the appeal with costs and a

direction to the Trial Court, to draw up a decree. Since the relief

was not specified, the Trial Court drew up a decree, with

provision for cost alone which was challenged before this

Court. It was held that the obligation cast by Order XX of the

Code that the decree should agree with the judgment, spells

out an obligation on the part of the author of the judgment to

clearly indicate the relief or reliefs to which a party, in his

17 (2003) 1 SCC 197

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opinion, has been found entitled, to enable decree being

framed in such a manner that it agrees with the judgment and

specifies clearly the relief granted or other determination of the

suit. The operative part of the judgment should be so clear and

precise that in the event of an objection being laid, it should not

be difficult to find out by a bare reading of the judgment and

decree whether the latter agrees with the former and is in

conformity therewith. ‘A self-contained decree drawn up in

conformity with the judgment would exclude objections and

complexities arising at the stage of execution’ (sic). The Andhra

Pradesh High Court held that though Rule 6A was amended with

the aforesaid omission, the judgment of this Court having been

pronounced after such amendment, it takes care of the vacuum

created by the omission, being the law of the land under Article

141 of the Constitution of India. For completeness, we have to

notice that even this Court in Lakshmi Ram Bhuyan17 left it to

the decree holder to approach the High Court to get modified

the decree.

28. We have been informed that in certain States, two decrees

are drawn up from a common judgment in a suit and a

counterclaim, but in others there is only one decree drawn up,

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as in this case. The necessity of two decrees or one single

decree, pales into insignificance, especially when the provision

for appeal requires only a judgment to accompany the

Memorandum of Appeal. The proviso to Order XLI Rule 1

enables the certified copy of the judgment to be dispensed

with, when two appeals from a common judgment in two suits

tried together, are preferred, whether or not the appeals are

filed by the same person or not. However, the fact remains that

the claim in the suit and the counterclaim, when treated as

cross-suits, court fees are to be paid for the claim raised in the

suit and also counterclaim raised in the written statement.

Hence, whether it be a single decree or two, when a composite

appeal is filed from a common judgment in the suit and the

counterclaim, necessarily court fees have to be paid on the

valuation in the suit and the counterclaim as applicable to

appeals.

29. Finding no contrary or restrictive provisions in the CPC,

we hold and declare that a suit and a counterclaim, if

adjudicated by a single common judgment; both on the original

claim and on the counterclaim, it can be challenged in a

composite appeal. The composite appeal, however, should

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show the grounds raised against the decree in the suit and the

decree in the counterclaim separately; whether there are two

decrees or one drawn up. The composite appeal should also be

valued as two separate appeals and the court fees paid

accordingly. This would enable the appeal to be considered on

merits, without the grounds of estoppel and res judicata raised

only for reason of two appeals not being filed. Though an

implied mandate could be drawn from the various provisions,

we are of the opinion that this would ensure avoidance of

procedural rigmarole as also multiplicity of litigations.

30. On the above reasoning and also finding that there was

considerable flux insofar as whether there should be two

appeals or a composite appeal, in disposal of this appeal, it

would suffice, if we direct the first appeal to be restored, which

we do, and to facilitate that, the impugned orders of the High

Court and the First Appellate Court are set aside. The appellant

herein would be entitled to file a fresh memorandum with

separate grounds taken and pay court fees for the one

additional appeal. The appeal so filed shall be considered by

the First Appellate Court along with the other appeal, on merits

as expeditiously as possible considering the delay that has now

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been occasioned. We make it clear that we direct another

appeal to be filed in this case since there is already one appeal

filed, but henceforth a challenge against a common judgment

in a suit and counterclaim, can be by way of a composite

appeal, as directed herein above.

31. The appeal is allowed with the above directions.

32. Pending application(s), if any, shall stand disposed of.

33. The Registry shall forward one copy each of this judgment

to all the High Courts.

.......…….……………………. J.

(J. B. PARDIWALA)

....……….……………………. J.

(K. VINOD CHANDRAN)

NEW DELHI;

AUGUST 11, 2026.