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Rajasthan High Court
Dave & Modi, JJ.
Sukhlal - Appellant
Versus
Deepchand - Respondents
D.B. Ijlas-i-khas Appeal No. 22 of 1950
Decided On : September 14, 1953
Where there are cross cases involving a common subject-matter and are disposed of by a common judgment and two decree-sheets are prepared in each case but an appeal is filed by the defeated party from one decree only, the single appeal filed by the defeated party. Will not be barred by sec. 11 of the Code of Civil Procedure as the two suits are not separate and independent proceedings but are really one proceeding in which there is no previous trial and former judgment and, therefore, sec. 11 in terms cannot apply. As to the further question whether the principle, as contra-distinguished from the rule of res judicata embodied in sec. 11 C.P.C. applies, it may also be stated that it does not because what the general doctrine of res judicata forbids is that no body should be vexed twice over the same matter and this cannot be said of Such cases since there is only one judgment which is under appeal notwithstanding the fact that two decrees have been prepared and it could not be said that the respondent will be subjected to a multiplicity of proceedings while the decree appealed against is being examined. In truth it must be accepted that in all such cases, there is only one trial; and one judgment, and there is nothing by way of a previous decision or dispute such as may attract the rule of res judicata. Thirdly, is to the anomaly or the embarrassment which may be Caused by the presence of two conflicting decrees existing side by side on the record in the same matter, that undoubtedly raises a question of some perplexity, but the answer to this appears to be of a two-fold nature. In the first place, in such cases, there is really a consolidation of suits and, therefore, there ought to be, in reality, only one decree in both the suits so as to avoid all confusion, and the second place, even if there are two decrees, it can be postulated because one appealable decree requires in law to be heard, its hearing cannot be stifled because an identical decree arising out a common judgment has not been appealed from. Now, if the above principles are correctly applicable to cases of cross-suits culminating in a common judgment but two decrees and a single appeal, they are, in our opinion, applicable a fortiori to the other class of cases where there is only one suit, and two appeals by both parties, which are decided by a common judgment by the lower appellate court and the aggrieved party files only a single appeal from one of the two decrees prepared and leaves the other unappealed. But the rule will be different where two suits or two appeals between the same parties and raising the same questions are tried together but separate and independant judgments are given in each, or, where such suits or appeals are tried by different courts and separate judgments are pronounced and the party appeals from one decree leaving the other to become final against him.
2. The Plaintiffs-respondents carried on the business of commission agents under the same and style of Ratanlal Simrathmal at Bombay. The defendant-appellants are members of a joint Hindu family, defendant-appellant No. 1 Sukhlal being the father and Nos. 2 & 3 Ranulal and Misrilal, his sons. The plaintiff-respondents case was that under instructions from defendant-appellant Sukhlal, they entered into certain transactions relating to the sale and purchase of gold, silver, ground-nuts, linseed, cotton and wheat, for and on behalf of the appellants in Svt. 1990 and 1991 as a result of which the plaintiffs were entitled to receive from the defendants a sum of Rs. 9309/2/3 on Jeth Vadi 1, Svt. 1992 as principle to which they added a sum of Rs. 332/13/9 as interest up to that date and a sum of Rs. 740/8/6 as interest upto the date of suit, and a further sum of Rs. 6/- as notice and other incidental charges thus amounting to Rs. 10,388/8/6. The plaintiffs gave a credit of Rs. 111/15/6 on account of 223-1/4 Tolas of silver belonging to the defendants which lay with the plaintiffs and thus filed a suit for the recovery of Rs. 10,276/9/- with pending and further interest at 6% per annum in the Chief Court of the former State of Jodhpur on 24th August, 1936.
3. Defendant-appellants Nos. 2 and 3 were impleaded is minors but became major subsequently and have filed this appeal as such. They filed a Jawabdava through their guardian-ad-litem appointed by the court to the effect that the business carried by their father Sukhlal was not a joint family business, and the debt incurred by their father, if at all, was not supported by legal necessity or benefit to the family and appeared to be immoral and illegal, and, therefore, they were not liable. Defendant-appellant Sukhlal contested the suit on numerous ground. His main pleas were that the suit was bad for want of jurisdiction, as the cause of action did not arise within the limits of the courts of the former Jodhpur State as he was not a resident of the State; that the transactions in question were of a wagering nature, and further that the business was entered into by him not as a manager of the joint Hindu family but in his personal capacity. The defendant also attacked certain individual items of business and he finally claimed that the plaintiffs should have given credit to the defendant in respect of certain items for their failure to carry out his instructions at the proper time, and in the net result, nothing would be found due from him.
4. The learned District Judge to whom the case was eventually transferred decreed the plaintiffs suit for Rs. 10,276/9/- with costs with a direction that the decretal amount would carry interest at the rate of 6% per annum till realization in the event of the defendants failure to pay it within two months from the date of the decree. As regards defendants Nos. 2 and 3 they were held to be liable only to the extent of their interest in the joint family property.
5. From the above decree, both plaintiffs and defendants took appeals to the High Court of the former State of Jodhpur. Appeal No. 42 of 1947-48 was filed by the defendants. Appeal No. 45 of 1947-48 was filed by the plaintiffs in which the only contention raised by them was that the trial court had committed an error in not allowing interest to them from the date of suit to the date of the decree. A Division Bench of the High Court disposed of both the appeals by one judgment and reduced the decree against the defendant to Rs. 8,276/9/ and allowed proportionate costs in the trial court, and further allowed interest at the rate of 6% pe
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