J U D G M E N T

By way of this Regular Second Appeal, the appellant has prayed for the following relief:-

“It is, therefore, most respectfully prayed that the present appeal may kindly be accepted and allowed and the impugned judgment dated 18.06.2019, passed by Ld. Distt. Judge, Shimla, in Civil Appeal No.4-S/13 of 2019 ( CNR No.HPSH100002432019) titled as “Sh. Gauri Partap vs Sh. Vikas Hetta through LRs” whereby the judgment dated 13.12.2018 passed by Ld. Senior Civil Judge, Court No.1, Shimla, in Civil Suit No.163/1 of 2018/2009, titled as “Sh. Vikas Hetta through LRs vs Sh. Gauri Partap” has been confirmed, may be set aside and quashed, keeping in view the above grounds of appeal, in the interest of justice.”

2. The record demonstrates that a Civil Suit was instituted for recovery of an amount of Rs.50,000/- by plaintiff Vikas Hetta against defendant Gauri Partap. In the said proceedings, a counter- claim was instituted by Gauri Partap against Vikas Hetta. Vide judgment and decree passed by the Court of learned Senior Civil Judge, Court No.1, Shimla, dated 13.12.2018, in Civil Suit No.163-1 of 2018/2009, titled as Sh. Vikas Hetta (deceased through his legal heirs) Versus Sh. Gauri Partap, the suit for recovery filed by the plaintiff was decreed with interest, however, the counter-claim filed by the defendant was dismissed. The judgment and decree, so passed by the learned Court below vide which the suit of the plaintiff was decreed and the counter-claim was dismissed, was assailed by the present appellant by way of a single appeal before the learned First Appellate Court, i.e. Civil Appeal No.4-S/13 of 2019, titled as Sh. Gauri Pratap Versus Shri Vikas Hetta since deceased through his legal representatives Devku Devi and another. In these proceedings, cross-objections were also filed by the respondents therein, i.e. the successor-in-interest of the plaintiff, who in the meanwhile had died. Vide judgment and decree dated 18.06.2019, the appeal as well as the cross-objections were dismissed. It is in these circumstances that the present appeal stands filed.

3. When this appeal was taken up for consideration, Mr. Y.P. Sood, learned counsel for the respondents has pointed out that as the grant of decree in favour of the plaintiff and rejection of the counter-claim was assailed by the present appellant by way of one appeal before the learned First Appellate Court, the present appeal is not maintainable and in fact not even the appeal which was so preferred by the present appellant before the learned First Appellate Court was maintainable, as both the grant of decree in favour of the plaintiff and rejection of the counter-claim constituted two different decrees, therefore, both were liable to be assailed independently at the first instance, as the findings returned in either one obviously in the event of non-challenge acted as resjudicata vis-a-vis adjudication of the other issue.

4. Learned Senior Counsel appearing for the appellant has fairly submitted that as far as this contention of the learned counsel for the respondent is concerned that being a factual reality, he cannot improve upon it.

5. This issue in fact now stands settled by the Hon’ble Division Bench of this Court in reference in RSA No.57 of 2017, titled as Shri Ramesh Chand Versus Om Raj and others and other connected matters, dated 17.05.2022, in which Hon’ble Division Bench has been pleased to hold as under:-

“42. The principles deducible from the afore-discussed law can be summarized as follows:-

(i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party;

(ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, decision of such single appeal, by a common judgment, reve