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SUPREME COURT OF INDIA
Indira Banerjee, J.K. Maheshwari, JJ.
M/S Ramnath Exports Pvt. Ltd. – Appellant
Versus
Vinita Mehta & Anr. – Respondents
Civil Appeal No. 4639 of 2022 [Arising Out of SLP (C) No. 30216 of 2018]
Decided on : 05-07-2022
(A) Civil Procedure Code, 1908 – Section 96 – First Appeal – Appeal is a continuation of proceedings of original court – Ordinarily, in first appeal, appellate jurisdiction involves rehearing on law as well as on fact as invoked by an aggrieved person – First appeal is a valuable right of appellant and therein all questions of fact and law are open for consideration by reappreciating material and evidence – First appellate court is required to address on all issues and decide appeal assigning valid reasons either in support or against by reappraisal – Court of first appeal must record its findings dealing all issues, considering oral as well as documentary evidence led by parties. (Para 8)
(B) Civil Procedure Code, 1908 – Section 11 – Res Judicata – Suits for permanent and mandatory injunction – Bar of Res Judicata – Appellant filed application seeking permission to file single appeal against common judgment as well as two separate decrees passed in consolidated suits – Prior to deciding preliminary objection, High Court should have decided 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 – Without deciding CLMA and accepting preliminary objections, dismissing appeal as barred by res judicata, primarily appears contrary to spirit of its own order – Approach adopted by High Court is not correct, because on dismissal of CLMA, appellant might have had opportunity to rectify defect by way of filing separate appeal under Section 96 of CPC challenging same judgment with separate decree passed in Civil Suit – Procedural defect may fall within purview of irregularity and capable of being cured, but it should not be allowed to defeat substantive right accrued to litigant without affording reasonable opportunity – Non-adjudication of CLMA application and upholding preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to appellant – Matter remanded to High Court with a request to decide CLMA prior to deciding preliminary objection of maintainability of one appeal. (Paras 9, 10, 11 and 12)
Facts of the case:
Appellant prayed for ‘permanent injunction’ restraining respondents/defendants from providing or creating any passage through the property of appellant after demolishing existing passage. In impugned order, Court held that separate appeals ought to have been filed by appellant against the decree given in suits. Failure to file separate appeals would invite the applicability of principle of res judicata. 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, res judicata would operate as against the findings given in another suit even after consolidation. Thus, held that, cause of appellant is foreclosed by applicability of principle of res judicata.
Findings of Court:
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.
Result : Appeal allowed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!)
JUDGMENT
J.K. Maheshwari, J.
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 judgment' dated 16.04.2008 passed by Trial Court in Suit No.411 of 1989 (filed by respondents herein joining appellant as 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 disposed-off by the Trial Court by a common judgment dated 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 said that the case is restricted to the question of applicability of principle of res-judicata 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 res-judicata. 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., ALR (1910) Allahabad 51, and also the case of 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 Lonankutty Vs. Thomman & Anr., (1976) 3 SCC 528, said that the case in hand is similar to the case of Lonankutty (supra) which was dismissed on the ground of res-judicata 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, th
First appeal is a valuable right of appellant and therein all questions of fact and law are open for consideration by reappreciating material and evidence.
A single second appeal is maintainable against multiple decrees from a single suit, clarifying procedural requirements under the CPC and High Court Rules.
A single appeal is maintainable against a composite decree involving both a suit and a counter-claim under the CPC.
The principle of res judicata does not apply when different issues are raised in separate appeals stemming from the same judgment, warranting a fresh hearing.
The principle of res judicata bars re-litigation of matters already decided, confirming that the earlier judgment is binding and the current suit is not maintainable.
Trial courts must adjudicate all issues in a suit, and failure to do so violates procedural requirements under CPC, necessitating remand.
Dismissal of a suit for a technical or formal defect or for non-compliance with a condition precedent does not constitute a bar to a subsequent suit.
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