Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4639 OF 2022
[ARISING OUT OF SLP (C) NO.30216 OF 2018]
M/S RAMNATH EXPORTS PVT. LTD. …APPELLANT
VERSUS
VINITA MEHTA & ANR. ...RESPONDENTS
J U D G M E N T
J.K. Maheshwari, J.
1. Leave granted.
2. This appeal arises out of the judgment dated 04.07.2018,
passed by High Court of Uttarakhand at Nainital in First Appeal
No.50 of 2008, preferred by appellant herein against the ‘common
Signature Not Verified
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.07.05
14:29:26 IST
Reason:
judgment’ dated 16.04.2008 passed by Trial Court in Suit No.411
of 1989 (filed by respondents herein joining appellant as
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defendant) and Suit No.419 of 1993 (filed by appellant herein
joining respondents as defendant). In Suit No.411 of 1989,
respondents sought ‘permanent injunction’ against appellant
restraining it from interfering in the right of use of concerned
passage or causing any interference or putting any obstruction in
the usage of the said passage and not to make any septic tank,
soakage pit or raise any other construction. The respondents also
prayed for grant of ‘mandatory injunction’ against the appellant,
making prayer to remove and demolish the walls on the
concerned passage and restoring the passage to its original width
of 13 ft. and filling up the ditch near the gate of plaintiff no.2
(respondent no.2 herein). In Suit No.419 of 1993, appellant
herein prayed for ‘permanent injunction’ restraining the
respondents/defendants from providing or creating any passage
through the property of appellant after demolishing the existing
passage. Since both the suits involved grievances pertaining to
the passage of the same land, therefore by consent order dated
18.08.2006 both were consolidated. The common issues were
framed by Trial Court to facilitate disposal of both suits by same
evidence. Consequently, the aforesaid consolidated suits were
disposedoff by the Trial Court by a common judgment dated
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16.04.2008, though two separate decrees were drawn on
30.04.2008. The Suit No.411 of 1989 was partly decreed in
favour of plaintiff no. 2 (respondent no.2 herein), whereas Suit
No.419 of 1993 was dismissed.
3. Being aggrieved by the common judgment, appellant
preferred First Appeal No.50 of 2008 before the High Court
challenging both the decrees. On filing appeal, at the initial stage,
appellant also preferred an application being CLMA No.4365 of
2008 (in short be referred as “CLMA”) and sought permission to
file a single appeal assailing the common judgment dated
16.04.2008 alongwith two separate decrees dated 30.04.2008.
The first appeal was admitted by High Court vide order dated
18.07.2008 and by the same order, two weeks’ time was granted
to file objections on CLMA and further two weeks to file rejoinder.
It was further directed to list the application after lapse of the
said period.
4. The High Court without passing any order on the said
CLMA, at the time of hearing of the appeal, accepted the
preliminary objection regarding maintainability of single first
appeal without entering into the merits of the case. The Court
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said that the case is restricted to the question of applicability of
principle of resjudicata and, taking into consideration the
material placed and the contentions raised by both the parties,
the appeal was dismissed holding that one appeal is not
maintainable and barred by resjudicata. In the impugned order,
the High Court has considered the full bench judgment of
Allahabad High Court in the case of Zaharia Vs. Dibia & Ors.,
, and also the case of
ALR (1910) Allahabad 51 Narhari & Ors.
Vs. Shanker & Ors., AIR 1953 SC 419 , in which full bench
judgment of Lahore High Court passed in case of
Mt. Lachhmi
Vs. Mt. Bhulli, AIR 1927 Lahore 289 was relied. The Court
distinguished the full bench judgment of Mt. Lachhmi (supra) of
Lahore High Court and also the judgment of this Court in the
case of Narhari (supra) and placing reliance upon the judgment
of , said
Lonankutty Vs. Thomman & Anr., (1976) 3 SCC 528
that the case in hand is similar to the case of Lonankutty
(supra) which was dismissed on the ground of resjudicata alone.
The High Court further relied upon the judgment of this Court in
Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal
& Ors., (2015) 3 SCC 624 , wherein, this Court while dealing
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with the concept of resjudicata discussed law on the point of
applicability of resjudicata and observed that losing party must
file appeals in respect of all adverse decree founded even on
partially adverse or contrary speaking judgments.
5. In impugned order, the Court held that separate appeals
ought to have been filed by appellant against the decree given in
Suit No.411 of 1989 as well as in Suit No.419 of 1993. Failure to
file separate appeals would invite the applicability of principle of
resjudicata. The Court in the order concluded that one appeal
against both the decrees is not tenable in terms of clear
stipulation as per Section 96 of CPC. As separate appeals have
not been filed against both the decrees, resjudicata would
operate as against the findings given in another suit even after
consolidation. Thus, held that, the cause of appellant is
foreclosed by applicability of principle of resjudicata.
6. Being aggrieved, the appellant preferred instant appeal and
learned counsel present has contested the same on following
grounds –
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a) The appellant had assailed the findings recorded by Trial
Court by mentioning both the suit numbers alongwith
payment of requisite court fee for the purpose of valuation on
the basis of consolidated value of suits;
b) The first appeal was admitted by High Court vide order dated
18.07.2008, but the same was dismissed after a decade
without entering into the merits of the case;
c) While admitting the appeal, notice was issued on CLMA, i.e.,
application to seek permission to file single appeal impugning
the common judgment and two decrees, but without deciding
the said application, the preliminary objections raised by the
respondents has been maintained causing serious prejudice
to it;
d) The essence of rule of resjudicata is that the two
proceedings should be so independent of each other that the
trial of one cannot be confused with trial of other suit, but
where two suits having common issue were tried together
and disposedoff vide single judgment, can they be said to be
two distinct and independent trials;
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e) In effect, only one judgment was passed in the trial and suits
were not clubbed but were consolidated for all purposes;
f) In support of the said contentions learned counsel would rely
upon –
i. State of Andra Pradesh & Ors. Vs. B. Ranga Reddy
(thru LR’s) & Ors., (2020) 15 SCC 681;
ii. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi
Ammal & Ors., (2015) 3 SCC 624;
7. Per contra, the counsel for the respondents has argued in
support of the findings recorded in the impugned judgment and
made the following submissions –
a. The appellant unilaterally preferred single appeal and paid
the Court fee on the basis of consolidated value of suits,
whereas, separate Court fee was to be calculated on each
decree and affixed accordingly;
b. Appeal against decree in Civil Suit No.411 of 1989 can be
filed before District Judge, having a limitation of 30 days as
per Section 8 of Suits Valuation Act, 1887, whereas, looking
to the valuation, appeal against decree in Civil Suit No.419 of
1993 lies before High Court having a limitation of 90 days.
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No such appeal against decree in Civil Suit No.411 of 1989
before District judge was preferred by appellant;
c. The judgment and decree passed in Civil Suit No.411 of 1989
has attained finality interse parties since it was not
challenged within the prescribed period of limitation;
d. Consolidation of suits was done only for evidence and it does
not mean that one appeal can be preferred since suits still
retain their separate identity. Even assuming that the
consolidation was for all purposes, yet the procedure for
preferring an appeal cannot be waived or bypassed;
e. Since the day of notice in first appeal, objection has been
raised for filing only one appeal and still the said defect was
not rectified by the appellant;
f. Learned counsel placed reliance on following judgments to
substantiate the submissions –
i. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi
Ammal & Ors., (2015) 3 SCC 624;
ii. V. Natarajan Vs. SKS Ispat & Power Ltd. & Ors., Civil
Appeal No.3327 of 2020)
iii. B. Santoshamma & Anr. Vs. D. Sarla & Anr., 2020
SCC OnLine SC 756;
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8. After having heard learned counsel for parties and on
perusal of the material available, we have read the provision of
Section 96 of CPC, which provides for filing of an appeal from the
decree by any Court exercising original jurisdiction to the Court
authorized to hear appeals from the decisions of such Courts. It
is also settled that an appeal is a continuation of the proceedings
of the original court. Ordinarily, in the first appeal, the appellate
jurisdiction involves a rehearing on law as well as on fact as
invoked by an aggrieved person. The first appeal is a valuable
right of the appellant and therein all questions of fact and law are
open for consideration by reappreciating the material and
evidence. Therefore, the first appellate court is required to
address on all the issues and decide the appeal assigning valid
reasons either in support or against by reappraisal. The court of
first appeal must record its findings dealing all the issues,
considering oral as well as documentary evidence led by the
parties.
9. In the instant case, it is not disputed that appellant herein
filed CLMA, i.e., application seeking permission to file single
appeal against the common judgment as well as the two separate
decrees passed in consolidated suits. Further, as is evident from
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the record, especially from the order dated 18.07.2008, the High
Court at the time of admission of the appeal specifically directed
that CLMA be listed for disposal after expiry of four weeks’ time
given to both parties to file counter as well as rejoinder affidavits.
The relevant portion of the said order is reproduced for ready
reference as under –
“…….Learned Counsel for the respondent wants to file objection
against CLMA No.4365/2008. Two weeks’ time is given to file
objection/counter affidavit. Thereafter two weeks’ time is given
to file rejoinder by the appellant. List this application for disposal
after the expiry of aforesaid period…….”
10. The contention of the appellant with vehemence is that the
application CLMA seeking permission to file joint appeal against
common judgment and two decrees has not been decided by the
impugned order, though at the time of admitting the appeal and
issuing notice, objections were called. In the counteraffidavit
filed by the respondent even before this Court, the said fact has
not been contested or refuted. In the order, it has also not been
mentioned that dismissal of the appeal would lead to decide all
pending applications including CLMA. As per record, it is clear
that the High Court admitted the appeal on 18.07.2008 and
CLMA was awaiting its fate for almost about a decade. By the
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impugned order passed on 04.07.2018, first appeal was
dismissed accepting the preliminary objection regarding
maintainability applying the principle of resjudicata. There is not
even any without observation that permission as sought to file
one appeal cannot be granted. The record indicates that the
CLMA filed by the appellant seeking permission to file one appeal
was not decided. It is to observe, once at the time of admission of
first appeal, despite having objection of maintainability it was
admitted asking reply and rejoinder on CLMA, the High Court
ought to have decided the said application.
Thus, prior to deciding the preliminary objection, the High Court
should have decided the said CLMA, either granting leave to file a
single appeal or refusing to entertain one appeal against one
judgment and two decrees passed in two suits after
consolidation. In case, the High Court would have rejected the
said CLMA, the appellant could have availed the opportunity to
file separate appeal against the judgment and decree passed in
Civil Suit No.411 of 1989. Without deciding the CLMA and
accepting the preliminary objections, dismissing the appeal as
barred by resjudicata, primarily appears contrary to the spirit of
its own order dated 18.07.2008. In our considered view also, the
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approach adopted by High Court is not correct, because on
dismissal of the CLMA, the appellant might have had the
opportunity to rectify the defect by way of filing separate appeal
under Section 96 of CPC challenging the same judgment with
separate decree passed in Civil Suit No.411 of 1989. Converse to
it, if this Court proceeds to consider the merit of the contentions
raised in the said CLMA and record the findings in negative, it
would effectively render the appellant remediless, therefore, we
refrain ourselves from examining the merits of CLMA. It is a trite
law that the procedural defect may fall within the purview of
irregularity and capable of being cured, but it should not be
allowed to defeat the substantive right accrued to the litigant
without affording reasonable opportunity. Therefore, in our
considered view, nonadjudication of the CLMA application, and
upholding the preliminary objection of nonmaintainability of one
appeal by High Court has caused serious prejudice to the
appellant.
11. In view of the foregoing, this Court is not expressing any
opinion regarding correctness of the findings on the applicability
of resjudicata, except to observe that those findings as arrived in
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the impugned order would not sustain because of not deciding
the application CLMA filed by appellant seeking permission to file
one appeal against a common judgment passed in a consolidated
suit with two separate decrees. Therefore, in the light of the
preceding discussion, approach adopted by the High Court in
dismissing the admitted first appeal after a lapse of decade
without deciding the CLMA has effectively deprived the appellant
of its right to take its recourse by rectifying the defect and to be
heard on merits.
12. Resultantly, we allow this appeal and remand the matter to
the High Court with a request to decide the CLMA
No.4365/2008, prior to deciding the preliminary objection of
maintainability of one appeal. No costs.
………..………………...J.
(INDIRA BANERJEE)
.….………………………J.
(J.K. MAHESHWARI)
New Delhi;
July 05, 2022.
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