1.The challenge in the present appeals is to an order passed by the High Court of judicature of Andhra Pradesh at Hyderabad on October 01, 2012 whereby an appeal filed by the appellants was found to be hit by the principle of res judicata and was dismissed.
2.The brief facts leading to the present appeals are that three separate suits were filed against the defendants including the State: first, Original Suit No. 274 of 1983 in respect of 6.08 guntas of land comprising in Survey No. 9 of 2013 of Khairatabad Village; second suit bears Original Suit No. 276 of 1983 in respect of 3 guntas of land comprising in Survey No. 9 of 2013 of Khairatabad Village; and third suit bears Original Suit No. 141 of 1984 which has been filed in respect of land measuring 19.23 guntas in respect of land falling in Survey Nos. 49 and 50 in Rasoolpura Village. The stand of the State in all the suits is that the land in all the three suits falls in Survey No. 43 of Village Bholakpur, which is a Government Shikkam Talab measuring 145 acres 35 guntas, popularly known as Hussain Sagar Talab. All three suits were tried together. The evidence was recorded in Original Suit No. 274 of 1983. The issues and the findings recorded by the learned trial court on issues of title are as under: “ORIGINAL SUIT NO. 274 OF 1983 – FIRST SUIT Issues whether it is a part of Sy. Nos. 49 and 50 of Rasoolpura Village as claimed by the defendants 1 to 4 or whether it is the part of Sy. No. 43 of Bholakpur Finding Para 40. The plaintiff miserably failed to establish that the suit property forms part of Sy. No. 9/13 of Khairatabad Village. But the defendants 1 to 4 clearly established that it forms part of Sy. Nos. 49 and 50 of Rasoolpura. However, the Government also failed to established that the suit land forms part of Sy. No. 43 of Bholakpur Village. title to the suit property and whether he is entitled for Finding Para 41. The plaintiff miserably failed to establish his title and possession in the suit property and as such, he is not entitled for the relief of declaration or permanent injunction or possession. Finding ORIGINAL SUIT NO. 276 OF 1983 – SECOND SUIT Issues whether it is a part of Sy. No. 49 and 50 of Rasoolpura village as claimed by the defendants 1 and 2 or whether it is the part of Sy. No. 43 of Bholakpur Finding Para 45. Issue No. 1 in Original Suit No. 274 of 1983 and this issue are practically one and the same and as such the finding on issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also. title to the suit property and Whether he is entitled for Finding Para 46. The plaintiff in this suit also failed to establish his title and possession in the suit property and as such, he is not entitled for the reliefs of declaration or permanent injunction or alternative relief of possession. Finding ORIGINAL SUIT NO. 141 OF 1984 – THIRD SUIT Issues 1) Whether the suit property is part of Sy. Nos. 49 and 50 of Rasoolpura Village as claimed by the plaintiffs or Whether it is part of Sy. No. 9/13 of Khairatabad Village as claimed by the defendants 1 and 2 or Whether it is part of Sy. No. 4J of Bholakpur Village as claimed by the Government? Finding Para 50. The finding on Issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also. 2) Whether the plaintiff are entitled for declaration of their title to the suit property and Whether they are entitled for the consequential relief of permanent injunction or in the alternative for possession of the suit property? Finding Para 52. The plaintiffs could establish their title in the suit property and as such they are entitled for the reliefs of declaration and possession. Though they were in possession of the property originally, the Special Executive Magistrate took possession of the property after the initiation of Section 145 Cr.P.C. proceedings. So the Government is bound to surrender possession to the plaintiffs in this Suit. Finding Para 56. In the result, the suit is decreed with costs, as prayed for. The Government is erected to deliver possession of the suit property to the plaintiffs within 2 months. However, this finding shall not come in the way of the Urban Land Ceiling authorities to initiate proceedings to take possession of the excess land, if any, from the plaintiffs (in Original Suit No. 141 of 1984). Similarly, the Government is also at liberty to acquire any portion of the suit land for public purposes by following the necessary procedure and by paying the adequate compensation to the plaintiffs."
3.The State filed appeal arising out of judgment and decree in Original Suit No. 141 of 1984 (Third Suit). In the said appeal, an objection was raised that the findings recorded on Issue No. 1 in Original Suit Nos. 274 of 1983 and 276 of 1983 have to be treated as decree and would operate as res judicata. The High Court while hearing such objections in appeal framed the following two points for consideration: “1) Whether the findings of the lower Court on issue No. 1 in O.S. Nos. 274 and 276 of 1983 have to be treated as decree and whether they operate as res judicata against the Government, since the Government have not filed any appeals challenging the said findings? 2) Whether the Government of Andhra Pradesh was not required to file appeals on the ground that no enforceable decree was passed against it?”
4.The High Court held that decision on issues or any matter in controversy shall be deemed to be decree in view of reading of Order XIV Rule 1 of the Code of Civil Procedure, 19081. The High Court noticed the fact that in the third suit, there was a specific direction to deliver possession of the suit property to the plaintiff within two months but there is no specific direction against the Government in the first and the second suit but the fact remains that specific finding is given in those cases that Government failed to establish that the suit land forms part of Survey No.43 of Bholakpur Village. Thus, there is clear declaration of right and title of the parties. The High Court held as under: "In the present case, there is clear finding against the Government. When there is a clear finding that the suit land does not form part of Survey No. 43 of Bholakpur Village as claimed by the Government, it was obligatory on the part of the Government to file cross-objections. What Government can do is it can support the findings of the lower court. The findings of the lower court are that the suit land forms part of Survey No. 49 and 50 of Rasoolpura Village. Obviously, the Government cannot support such finding, because its case is that the suit land forms part of Survey No. 43 of Bholakpur Village. In the appeals filed by the plaintiffs, the main question that falls for consideration is whether the suit properties form part of Survey No. 9/13 of Khairatabad village or it forms part of Survey Nos. 49 and 50 of Rasoolpura village. The question whether the suit land forms part of Survey No. 43 of Bholakpur village as claimed by the Government does not fall for consideration in the appeals in CCCA 1 of 1999 or CCCA No. 9 of 1999 i.e., appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983. Therefore, without 1 for short, ‘Code' filing cross-objections the Government cannot challenge the findings of the trial court."
5.Mr. Vaidyanathan, learned senior counsel for the State relied upon judgments of this Court in Narhari & Ors. v. Shankar & Ors.2, Ganga Bai v. Vijay Kumar & Ors.3, Banarsi & Ors. v. Ram Phal4, Hardevinder Singh v. Paramjit Singh & Ors.5, Sri Gangai Vinayagar Temple & Anr. v. Meenakshi Ammal & Ors.6, Chitivalasa Jute Mills v. Jaypee Rewa Cement7, Ramesh Chandra v. Shiv Charan Dass8 and S. Nazeer Ahmed v. State Bank of Mysore & Ors.9 to contend that the defendants in the first and the second suit had no right to file an appeal against the decree of dismissal of suits passed in such suits. The appeal would not lie against the findings recorded when the decree is only of dismissal of the suits. It is argued that the effect of amendment in Order XLI Rule 22 of the Code vide Central Act No. 104 of 1976 is only to enable an aggrieved person to file cross objections but that does not take away the right of an aggrieved person to support the decree of dismissal of the suit in appeal on the grounds other than what weighed with the learned trial court in dismissing the suit. It is contended that appeal lies against the decree passed and not the judgment giving the reasons to pass a decree. It is further contended that the State has a right to agitate the findings on Issue No. 1 in terms of the provisions of Order XLI Rule 33 of the Code as well, therefore, the findings recorded on Issue No. 1 are not final so as to operate res judicata against the decree in the third suit which is the subject matter of challenge by the State. It is contended that the State has filed cross objections before hearing of the appeal though after the order of the High Court, thus, the findings recorded on Issue No. 1 have not attained finality which can operate as res judicata. It is contended that the judgments referred to by the learned counsel for the respondents are in the cases where the decree had attained finality. But none of the judgments referred to by the learned counsel for the respondents pertains to a finding recorded in a civil suit which was dismissed and is subject matter of challenge in appeal by the plaintiff himself.
6.On the other hand, Mr. Dushyant Dave, learned senior counsel for the respondents argued that there is a categorical finding recorded by the trial court that land does not fall in part of Survey No. 43 of Bholakpur Village, as per the stand of the Appellants in all three suits, therefore, it was mandatory for the defendants to impugn such findings by way of an appeal in the first and second suit as well. Since the State has not filed any appeal against the findings recorded in the first and the second suit, the findings recorded therein will operate as res judicata and the appeal arising out of the third suit is barred by res judicata. Learned counsel for the respondents relied upon the judgments of this Court in Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.10, Sheodan Singh v. Daryao Kunwar (Smt.)11, Lonankutty v. Thomman & Anr.12, Premier Tyres Limited v. Kerala State Road Transport Corporation13, Harbans Singh & Ors. v. Sant Hari Singh & Ors.14, Ashok Nagar Welfare Association & Anr. v. R. K. Sharma & Ors.15, Nirmala Bala Ghose v. Balai Chand Ghose16, Bhanu Kumar Jain v. Archana Kumar and Another17.
7.Mr. Dave submits that the judgments referred to by the learned counsel for the appellants are not applicable to the facts of the present case. He argued that res judicata applies not only to the decree but it bars the Court to try any suit or issue in which the matter has been directly and substantially in issue in former suit. It is, thus, contended that principle of res judicata are not only against the final judgment and decree but also in respect of any finding recorded in the suit.
8.Mr. Jai Savla, learned senior counsel, relied upon another judgment of this Court in Govindammal (D) by LRs & Ors. v. Vaidyanathan & Ors.18 to contend that plea of res judicata is applicable even in respect of co-defendants.
9.Respondent No. 8 in the written submissions relies upon Sri Gangai Vinayagar Temple to contend that the filing of a Single 13 1993 Supp. (2) SCC 146 18 (2018) 14 SCALE 198 Appeal would lead to entire dispute becoming sub judice only if suits are consolidated. Since, three suits in question were not consolidated, therefore, non-filing of the appeal by the appellants in first and second suit will operate as res judicata.
10.Learned counsel for the appellants has produced a photocopy of the decree in the Original Suit No. 274 of 1983 which is to the effect “that the suit be and the same is hereby dismissed”.
11.To appreciate arguments of the learned counsel for the parties, certain statutory provisions from the Code need to be extracted before the judgments referred to by the learned counsel for the parties are considered. “2(9) "judgment" means the statement given by the Judge on the grounds of a decree or order; 2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include – (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 96. Appeal from original decree (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. *** *** Order XLI Rule 22. Upon hearing, respondent may object to decree as if he had preferred a separate appeal (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 19[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any crossobjection] to the decree which he could have taken by way of appeal: Provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. 19[Explanation.- A respondent aggrieved by a finding of the Court in the judgement on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] Order XLI Rule 33. Power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. 19 Inserted by Central Act No. 104 of 1976 Section 11 - Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I - The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.”
12.The High Court referred to various judgments in respect of applicability of the principle of res judicata, therefore, non-filing of the appeal by the State in the other two suits operates as res judicata. The High Court referred to a judgment of this Court in Sheodan Singh wherein, this Court held that once a decree passed in the suit attains finality, it cannot be disturbed indirectly by adjudicating the very same questions in another appeal. We find that the findings recorded by the High Court are patently erroneous for the reasons recorded hereinafter. Therefore, non-filing of the appeal by the State in the other two suits operates as res judicata in the third suit.
13.The learned trial court had clubbed all the three suits and that common evidence was recorded, when it recorded the following fact: “All the above three suits have been clubbed and a joint trial has been held. O.S.No.274/83 has been taken as the leading suit and the evidence recorded in that suit has been taken as the evidence for the remaining two suits also. The parties to all the three suits can be divided into three groups…...”
14.Learned counsel for the respondents has tried to draw distinction between an order of consolidation of suits and the order where a common judgment is rendered in different suits. In Sri Gangai Vinayagar Temple, the Court referred to judgment in Chitivalasa Jute Mills. However, we find that distinction drawn by learned counsel for the respondents is not tenable in law. Chitivalasa Jute Mills is a case where one suit was filed at Reva in Madhya Pradesh and another in Vishakhapatnam. The Court noticed that claim in one suit is a defense in another suit, therefore, the order was passed for transfer of a subsequent suit filed at Reva to Vishakhapatnam.
15.In the present case, evidence have been recorded only in one suit as all the three suits have been clubbed together. In view of the said fact, we find that merely the word consolidation has not been used by the learned trial court, therefore, it will not be a case of consolidation of suits but of separate trials.
16.In Banarsi, the provisions of Order XLI Rule 22 of the Code as it existed before and after the amendment in 1976 as well as Order XLI Rule 33 of the Code have been considered. The said judgment arises out of a fact where a suit for specific performance of an agreement was filed by the respondent in appeal before this Court. The appellants also filed a suit seeking cancellation of the agreement, the basis of the suit for specific performance. The learned trial court ordered the appellants to deposit a sum of Rs.2,40,000/- but the decree for specific performance was not granted. Two appeals were taken up for hearing preferred by the appellants by the learned Additional District Judge. Both the appeals were dismissed but without any cross objections or an appeal, the Court decreed the suit for specific performance filed by the plaintiffs. The second appeal before the High Court was dismissed. It was held that the First Appellate Court committed no error of law exercising the powers under Order XLI Rule 33 of the Code to pass a decree for specific performance.
17.This Court examined the question as to whether decree for specific performance could be granted once declined by the trial court without filing any appeal or cross-objections. The Court held as under: "8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153] , Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar[(1974) 2 SCC 393] .) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment. 9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him…………………………A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection — both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.”
18.This Court while considering the amendments made in the Code in the year 1976, held that even under the amended provisions of Order XLI Rule 22 of the Code, a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objections. However, by an amendment in Order XLI Rule 22 of the Code, it is permissible to file cross objections against the finding. The respondent may defend himself without filing any cross objections to the extent to which decree is in his favour. The Court held as under: "10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objections to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelt out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default, the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”
19.The present is a case where the decree is of dismissal of suit therefore, entirely in favour of the State and not executable. Though an issue has been decided against the State as falling within second and third situation delineated by this Court. This Court held that in the absence of cross appeals or cross objections, the First Appellate Court did not have the jurisdiction to modify the decree that is to grant decree for specific performance which was not granted by the trial court.
20.The Court did not find any merit in the argument that the Appellate Court was not powerless to grant decree as such decree has been granted in terms of Order XLI Rule 33 of the Code. The Court held "15. … While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.”
21.Such view of the Court has been followed in a judgment in Hardevinder Singh. The said judgment arises out of a suit filed for possession of the suit land, challenging the Will said to be executed in favour of the defendants. The suit for joint possession was decreed holding that the Will is surrounded by suspicious circumstances and that the suit land was joint Hindu family property. In an appeal, the First Appellate Court recorded a finding that the property of the deceased Shiv Singh was self-acquired and that the Will in favour of defendant Nos. 1 to 4 was validly executed. The First Appellate Court dismissed the suit for the reason that there is a settlement between the parties. The defendant No. 5, brother of the Plaintiff who had similar interest as that of the plaintiff, aggrieved against the said judgment and decree passed by the First Appellate Court filed the second appeal, which was dismissed as not maintainable. In these circumstances, this Court held that a person has a right to maintain an appeal if such person is prejudicially or adversely affected by a decree. It was held that defendant No. 5, brother of the plaintiff benefited from the decree granted by the trial court but the plaintiff has settled the dispute with defendant Nos. 1 to 4, the rights of defendant No. 5 were unsettled and the benefit accrued in his favour became extinct, therefore, he had suffered a legal injury which could be challenged in second appeal. With the said finding, the judgment of the High Court was set aside and the matter was remitted to the High Court to decide afresh. This Court held as under: "21. After the 1976 Amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross-objection. In Banarsi v. Ram Phal [(2003) 9 SCC 606 : AIR 2003 SC 1989] , it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, the respondent must file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of the Explanation to sub-rule (1), though it is still not necessary for the respondent to take any crossobjection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross-objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the unamended Code.” (emphasis Supplied)
22.The judgment in Sri Gangai Vinayagar Temple is relied upon by both the parties. Learned counsel for the appellants relies upon para 25 of the order whereas, counsel for the respondents relies upon para 27 of the order. Both the paragraphs read as under: “25. On the issue of applicability of res judicata in cases where two or more suits have been disposed of by one common judgment but separate decrees, and where the decree in one suit has been appealed against but not against the others, various High Courts have given divergent and conflicting opinions and decisions………. ……..Without adverting to the details of those cases, it is sufficient to note that the hesitancy or reluctance to the applicability of the rigorous of res judicata flowed from the notion that Section 11 of the Code refers only to “suits” and as such does not include “appeals” within its ambit; that since the decisions arrived in the connected suits were articulated simultaneously, there could be no “former suit” as stipulated by the said section; that substance, issues and finding being common or substantially similar in the connected suits tried together, non-filing of an appeal against one or more of those suits ought not to preclude the consideration of other appeals on merits; and that the principle of res judicata would be applicable to the judgment, which is common, and not to the decrees drawn on the basis of that common judgment. 27. Procedural norms, technicalities and processal law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the courts by Section 151 CPC, as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC 85. In the instance of suits in which common issues have been framed and a common trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of crossobjections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a “former suit”. If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. Statutory law and processual law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all.”
23.It may be noticed that separate decree is required to be preferred in each suit even though the suits are consolidated. The threeJudge Bench in Sri Gangai Vinayagar Temple has categorically held that where a common judgment has been delivered in cases in which consolidation orders have been passed, the filing of an appeal leads to the entire dispute becoming sub judice again. The aforesaid judgment arises out of the fact whether tenant has filed a suit to protect its possession during the lease period which was coming to an end on January 1, 1983, claiming injunction not specifically challenging the alienation by the trustees of a public trust. The trustees have filed two separate suits for claiming arrears of rent, one for claiming Rs. 268/- and another for Rs. 2600/.
24.The tenant’s suit and the suit for the recovery of Rs. 2600/- were dismissed. Only one appeal was preferred by the tenant against the decree passed in the suit for recovery of Rs. 268/-. In these circumstances, it was held that since the claim of the tenant in his suit was substantially in respect of the right of the trustees to alienate the property of the trust as alleged by the tenant, which is the issue in the other suits as well, therefore, the decree in the suit for injunction filed by the plaintiff would operate as res judicata. But in the present case, an appeal in the first and second suit is pending in which the appellant has right to support decree in terms of Order XLI Rules 22 and 33 of the Code.
25.Learned counsel for the respondents strongly relies upon a Constitution Bench judgment of this Court in Badri Narayan Singh to contend that the findings recorded in one appeal operate as res judicata in the second appeal. To appreciate such argument, some facts leading to the said judgment need to be mentioned. The election of the appellant was challenged before the Election Tribunal on the ground that the appellant was holding an office of profit and, therefore, it is against the provisions of Section 7 of the Representation of the People Act, 1951. There was allegation that appellant had also committed corrupt practices. On the other hand, respondent filed a petition praying for the declaration that the election of the appellant was void and also claimed declaration that he was duly elected having polled more votes after appellantelected candidate. The Election Tribunal found that the appellant was not holder of office of profit but held that he is guilty of corrupt practices. The election of the appellant was set aside but did not grant the declaration that the respondent was duly elected candidate. The appellant filed Election Appeal No. 7 of 1958 whereas the respondent filed Election Appeal No. 8 of 1958 in the High Court against the order of the Election Tribunal. The appeal filed by the appellant was dismissed holding that he was holding office of profit but has not indulged in corrupt practice whereas the appeal filed by the respondent was allowed by a common judgment declaring the respondent to be duly elected. The appellant filed appeal before this Court only against the order in Appeal No. 8 of 1958. All the grounds of the appeal relate to the finding of the High Court in Appeal No. 7 of 1958. In appeal before this Court, a preliminary objection was taken that no appeal was preferred by the appellant against the order of the High Court in Appeal No. 7 of 1958. The Court distinguished the earlier judgment in Narhari. It held that though Appeal Nos. 7 and 8 of 1958 arose out of one proceeding but subject matter of each appeal was different, therefore, the final judgment would operate as res judicata. The relevant findings read as under: “14. It is true that both the Appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject-matter of each appeal was, however, different. The subject-matter of Appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal. It had nothing to do with the question of right of Respondent 1 to be declared as duly elected candidate……….. The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellant's election in Appeal No. 7. It came to another decision in Appeal No. 8 with respect to the justification of the claim of Respondent 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that Respondent 2, as Ghatwal, was not a properly nominated candidate. We are therefore of opinion that so long as the order in the appellant's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.” (Emphasis Supplied)
26.The said judgment has no applicability to the facts of the present case as the decree in Civil Suit No. 274 of 1983 or 276 of 1983 has not attained finality and the same are still subject matter of appeal before the First Appellate Court wherein, the findings recorded by the trial court can be set aside while maintaining ultimate decree of dismissal of the suit. In Badri Narayan Singh, the decision in an appeal became final, holding the appellant to be not duly elected candidate. The Appeal No. 8 of 1958 was in respect of declaration that the respondent shall be deemed to be elected candidate. Therefore, in the absence of finality of judgments, there cannot be any question of such finding binding in the third suit.
27.The Narhari arises out of a suit for possession of 1/3 share of land from the 2 sets of defendants. The suit was partly decreed. The trial court decreed the suit; however, two appeals were preferred by two sets of defendants. Both the appeals were allowed and the suit was dismissed. The plaintiff filed one appeal after filing the consolidated court fee for the whole suit and by impleading all the defendants as respondents. The argument raised was that the plaintiff has filed only one appeal, therefore, the findings recorded in the other appeal will operate res judicata in the second appeal preferred by the plaintiff. The Court held as under: “5. …..The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was ap- pealed against with a different number or a copy of it was attached to a different appeal. The two decrees in sub- stance are one. Besides, the High Court was wrong in not giving to the appellants the benefit of section 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India……”
28.Ganga Bai is the judgment arising out of the proceeding prior to amendment of Order XLI Rule 22 of the Code. The High Court held that the first appeal filed by defendant Nos. 2 and 3 was not maintainable even though the suit was wholly dismissed against them. The Court held that right of appeal is a creature of statute and that it is not inherent right. It was held as under: "17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by Defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court. xx xx xx 21. Thus, the appeal filed by Defendants 2 and 3 being directed against a mere finding given by the trial court was not maintainable…"
29.In Ramesh Chandra, the Court held that one of the tests to ascertain if a finding operates as res judicata is that the party aggrieved could challenge it by way of an appeal. The Court held “3. One of the tests to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it. Since the dismissal of appeal or the appellate decree was not against defendants. 2 and 3 they could not challenge it by way of appeal. Even assuming that defendant 1 could challenge the finding that liability of rent was of defendants 2 and 3 as they were in possession, he did not file any written statement in the trial court raising any dispute between himself and defendants 2 and 3. There was thus no occasion for the appellate court to make the observation when there was neither pleading nor evidence……”
30.In another judgment reported as S. Nazeer Ahmed, it has been held that the appellant without filing a memorandum of crossobjections in terms of Order XLI Rule 22 of the Code, could challenge the finding of the trial court. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross- objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. The court held as under: “7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvas the correctness of the finding on the bar of Order 2 Rule 2 rendered by the trial court.”
31.Mr. Dave vehemently argued that res judicata in terms of Section 11 of the Code is not about a decree but to a finding in the former suit. It is argued that the first suit and second suit are the former suits in which the findings were written against the State, therefore, such findings will operate res judicata. The said argument proceeds on the basis that the Court would mean the High Court and, therefore, finding in the first and second suit would bar the subsequent proceedings arising out of the third suit in appeal. We find that such an argument is not tenable. As mentioned above, that the decree of dismissal of the first and second suit has not attained finality which are under challenge by the plaintiffs and the defendants-State are entitled to dispute findings on Issue No. 1 even without filing cross objections or in terms of Order XLI Rule 33 of the Code that the decree of dismissal of suit on the grounds other than what weighed with the learned trial court. All the issues are open for consideration before the First Appellate Court.
32.Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits. All the three suits have been decided together and the three appeals pending against such judgment and decrees. Therefore, it cannot be said that the first and the second suit are the former suits as the decree passed therein has not attained finality. The findings recorded therein will not, therefore, operate as res judicata as the State is not obliged to challenge findings on Issue No.1 in the first and second suit even after the amendment of Order XLI Rule 22 of the Code.
33.This Court in Lonankutty has examined the applicability of the principles of Section 11 in a matter wherein two suits were filed. Civil Suit No. 666 of 1954 was filed by the appellant for an injunction from taking water from Survey No. 673 and discharge the water back through Survey No. 673 and for a mandatory injunction directing them to demolish the bund and close the sluice gates. The respondents filed Civil Suit No. 5 of 1957 for an injunction restraining the appellant from trespassing on the bund constructed by them and for preventing the appellant from interfering with their right to take water from Survey No. 673 and to discharge the water back through that land. The second was subsequent suit. The suit of the appellant was decreed. However, the suit of the respondents was dismissed but decreed to the extent of the right claimed regarding the agriculture use. The result of decrees passed in two suits was that the respondents could take water from the land of the appellant and discharge for agricultural purposes only and not for fishing. Both filed two appeals arising out of two suits. However, all the appeals were dismissed. No appeal came to be filed arising out of second suit filed by the respondents. It is in these circumstances it was held that the suit filed by the respondents, though after the suits of the plaintiff, would be deemed to be former suits as the decree in the said suit has attained finality. The Court held as under: "19. Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court, only as against the decree passed by the District Court in AS No. 66 of 1958 which arose out of the decree passed by the trial court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents' suit became final and conclusive. That decision, not having been appealed against, could not be reopened in the second appeal arising .out of the appellant's suit… xx xx xx 21. In its remanding judgment dated July 8, 1964, by which the plea of res judicata was repelled, the High Court relied principally on the decision of this Court in Narhari v. Shankar [AIR 1953 SC 419 : 1950 SCR 754;] . That decision is in our opinion distinguishable because in that case only one suit was filed giving rise to 2 appeals. A filed a suit against B and C which was decreed. B and C preferred separate appeals which were allowed by a common judgment, but the appellate court drew 2 separate decrees. A preferred an appeal against one of the decrees only and after the period of limitation was over, he preferred an appeal against the other decree on insufficient court fee. The High Court held that A should have filed 2 separate appeals and since one of the appeals was time barred, the appeal filed within time was barred by res judicata. This Court held that “there is no question of the application of the principle of res judicata”, because “when there is only one suit, the question of res judicata does not arise at all”. This was put on the ground that “where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up”. In our case, there were 2 suits and since the appellate decree in one of the suits had become final, the issues decided therein could not be reopened in the second appeal filed against the decree passed in an appeal arising out of another suit. This precisely is the ground on which Narhari case was distinguished by this Court in Sheodan Singh v. Smt Daryao Kunwar [AIR 1966 SC 1332: (1966) 3 SCR 300]. It was held therein that where the trial court has decided 2 suits having common issues on the merits and there are two appeals therefrom the decision in one appeal will operate as res judicata in the other appeal.”
34.The reliance of Mr. Dave on the judgment in Ashok Nagar Welfare Association is not relevant for the present case as question examined was the scope of interference in the Special Leave Petition. That was a case whether an ex parte decree granted in two suits by the trial court was set aside in appeal. The Special Leave Petition was directed against such order. This Court has rightly not interfered with the setting aside the ex parte judgment. Bhanu Kumar Jain is also a case delineating the remedies available to a defendant in the event of an ex parte decree granted. The said judgment is not applicable to the facts of the present case.
35.Another judgment referred to by Mr. Dave is Nirmala Bala Ghose. In the said case, the decree against deity had attained finality in two suits. It was held that it is not open to another defendant to challenge the decree insofar as it is against deities. The Court has held as under: “23. In this appeal, the two deities are also impleaded as party respondents. But the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the trial court. She is not seeking in this appeal to claim a mere exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the trial court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under Order 41 Rule 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Order 41 Rule 313, insofar as it is material, provides: "The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection:" The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.”
36.We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.
37.As per facts on record, Original Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The plaintiffs are in appeal in both the suits before the First Appellate Court. Therefore, such decree including the finding on Issue No. 1 has not attained finality as the Appellate Court is seized of the entire controversy including the findings of fact on Issue No. 1. The defendants have a right to dispute such findings by filing cross-objections under Order XLI Rule 22 of the Code as amended in the year 1976 or even in the exercise of the powers conferred on the Appellate Court under Order XLI Rule 33 of the Code.
38.The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11.
39.In view of the above, we allow the present appeals, set aside the order passed by the High Court in the first appeal filed by the State, as the findings on Issue Nos. 1 and 2 in the first and second suit do not operate as res judicata. The pending applications, if any, shall stand disposed of.
40.In view of the orders in the appeals, Contempt Petition (Civil) No. 204 of 2014 is disposed of. (L. NAGESWARA RAO) (HEMANT GUPTA) NEW DELHI; AUGUST 09, 2019. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 17486 OF 2017 STATE OF ANDHRA PRADESH & ORS. .....APPELLANT(S) VERSUS B. RANGA REDDY (D) BY LRs & ORS. .....RESPONDENT(S) W I T H CIVIL APPEAL NO. 17487 OF 2017 A N D CONTEMPT PETITION (CIVIL) NO. 204 OF 2014 J U D G M E N T
HEMANT GUPTA, J.
41) The challenge in the present appeals is to an order passed by the
High Court of judicature of Andhra Pradesh at Hyderabad on
October 01, 2012 whereby an appeal filed by the appellants was
found to be hit by the principle of res judicata and was dismissed.
42) The brief facts leading to the present appeals are that three
separate suits were filed against the defendants including the
State: first, Original Suit No. 274 of 1983 in respect of 6.08 guntas
of land comprising in Survey No. 9 of 2013 of Khairatabad Village;
second suit bears Original Suit No. 276 of 1983 in respect of 3
guntas of land comprising in Survey No. 9 of 2013 of Khairatabad
Village; and third suit bears Original Suit No. 141 of 1984 which has
been filed in respect of land measuring 19.23 guntas in respect of
land falling in Survey Nos. 49 and 50 in Rasoolpura Village. The
stand of the State in all the suits is that the land in all the three
suits falls in Survey No. 43 of Village Bholakpur, which is a
Government Shikkam Talab measuring 145 acres 35 guntas,
popularly known as Hussain Sagar Talab. All three suits were tried
together. The evidence was recorded in Original Suit No. 274 of
1983. The issues and the findings recorded by the learned trial
court on issues of title are as under:
Issues
whether it is a part of Sy. Nos. 49 and 50 of
Rasoolpura Village as claimed by the defendants 1 to
4 or whether it is the part of Sy. No. 43 of Bholakpur
Finding
Para 40. The plaintiff miserably failed to establish that
the suit property forms part of Sy. No. 9/13 of
Khairatabad Village. But the defendants 1 to 4 clearly
established that it forms part of Sy. Nos. 49 and 50 of
Rasoolpura. However, the Government also failed to
established that the suit land forms part of Sy. No. 43
of Bholakpur Village.
title to the suit property and whether he is entitled for
Finding
Para 41. The plaintiff miserably failed to establish his
title and possession in the suit property and as such,
he is not entitled for the relief of declaration or
permanent injunction or possession.
Finding
Issues
whether it is a part of Sy. No. 49 and 50 of Rasoolpura village as claimed by the defendants 1 and 2 or whether it is the part of Sy. No. 43 of Bholakpur
Finding Para 45. Issue No. 1 in Original Suit No. 274 of 1983 and this issue are practically one and the same and as such the finding on issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also.
title to the suit property and Whether he is entitled for
Finding Para 46. The plaintiff in this suit also failed to establish his title and possession in the suit property and as such, he is not entitled for the reliefs of declaration or permanent injunction or alternative relief of possession.
Finding
Issues
4) Whether the suit property is part of Sy. Nos. 49 and 50 of Rasoolpura Village as claimed by the plaintiffs or Whether it is part of Sy. No. 9/13 of Khairatabad Village as claimed by the defendants 1 and 2 or Whether it is part of Sy. No. 4J of Bholakpur Village as claimed by the Government?
Finding Para 50. The finding on Issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also.
5) Whether the plaintiff are entitled for declaration of their title to the suit property and Whether they are entitled for the consequential relief of permanent injunction or in the alternative for possession of the suit property?
Finding
Para 52. The plaintiffs could establish their title in the
suit property and as such they are entitled for the
reliefs of declaration and possession. Though they
were in possession of the property originally, the
Special Executive Magistrate took possession of the
property after the initiation of Section 145 Cr.P.C.
proceedings. So the Government is bound to
surrender possession to the plaintiffs in this Suit.
Finding
Para 56. In the result, the suit is decreed with costs,
as prayed for. The Government is erected to deliver
possession of the suit property to the plaintiffs within
2 months. However, this finding shall not come in the
way of the Urban Land Ceiling authorities to initiate
proceedings to take possession of the excess land, if
any, from the plaintiffs (in Original Suit No. 141 of
1984). Similarly, the Government is also at liberty to
acquire any portion of the suit land for public
purposes by following the necessary procedure and
by paying the adequate compensation to the
plaintiffs."
43) The State filed appeal arising out of judgment and decree in
Original Suit No. 141 of 1984 (Third Suit). In the said appeal, an
objection was raised that the findings recorded on Issue No. 1 in
Original Suit Nos. 274 of 1983 and 276 of 1983 have to be treated
as decree and would operate as res judicata. The High Court while
hearing such objections in appeal framed the following two points
for consideration:
“1) Whether the findings of the lower Court on issue
No. 1 in O.S. Nos. 274 and 276 of 1983 have to be
treated as decree and whether they operate as res
judicata against the Government, since the
Government have not filed any appeals challenging
the said findings?
2) Whether the Government of Andhra Pradesh was
not required to file appeals on the ground that no
enforceable decree was passed against it?”
44) The High Court held that decision on issues or any matter in
controversy shall be deemed to be decree in view of reading of
Order XIV Rule 1 of the Code of Civil Procedure, 190820. The High
Court noticed the fact that in the third suit, there was a specific
direction to deliver possession of the suit property to the plaintiff
within two months but there is no specific direction against the
Government in the first and the second suit but the fact remains
that specific finding is given in those cases that Government failed
to establish that the suit land forms part of Survey No.43 of
Bholakpur Village. Thus, there is clear declaration of right and title
of the parties. The High Court held as under:
"In the present case, there is clear finding against the
Government. When there is a clear finding that the
suit land does not form part of Survey No. 43 of
Bholakpur Village as claimed by the Government, it
was obligatory on the part of the Government to file
cross-objections. What Government can do is it can
support the findings of the lower court. The findings of
the lower court are that the suit land forms part of
Survey No. 49 and 50 of Rasoolpura Village. Obviously,
the Government cannot support such finding, because
its case is that the suit land forms part of Survey No.
43 of Bholakpur Village.
In the appeals filed by the plaintiffs, the main
question that falls for consideration is whether the suit
properties form part of Survey No. 9/13 of Khairatabad
village or it forms part of Survey Nos. 49 and 50 of
Rasoolpura village. The question whether the suit land
forms part of Survey No. 43 of Bholakpur village as
claimed by the Government does not fall for
consideration in the appeals in CCCA 1 of 1999 or
CCCA No. 9 of 1999 i.e., appeals filed by the plaintiffs
in O.S. Nos.274 and 276 of 1983. Therefore, without
filing cross-objections the Government cannot
challenge the findings of the trial court."
45) Mr. Vaidyanathan, learned senior counsel for the State relied upon
20 for short, ‘Code'
judgments of this Court in Narhari & Ors. v. Shankar & Ors.21,
Ganga Bai v. Vijay Kumar & Ors.22, Banarsi & Ors. v. Ram
Phal23, Hardevinder Singh v. Paramjit Singh & Ors.24, Sri
Gangai Vinayagar Temple & Anr. v. Meenakshi Ammal &
Ors.25, Chitivalasa Jute Mills v. Jaypee Rewa Cement26,
Ramesh Chandra v. Shiv Charan Dass27 and S. Nazeer Ahmed
v. State Bank of Mysore & Ors.28 to contend that the defendants
in the first and the second suit had no right to file an appeal
against the decree of dismissal of suits passed in such suits. The
appeal would not lie against the findings recorded when the decree
is only of dismissal of the suits. It is argued that the effect of
amendment in Order XLI Rule 22 of the Code vide Central Act No.
104 of 1976 is only to enable an aggrieved person to file cross
objections but that does not take away the right of an aggrieved
person to support the decree of dismissal of the suit in appeal on
the grounds other than what weighed with the learned trial court in
dismissing the suit. It is contended that appeal lies against the
decree passed and not the judgment giving the reasons to pass a
decree. It is further contended that the State has a right to agitate
the findings on Issue No. 1 in terms of the provisions of Order XLI
Rule 33 of the Code as well, therefore, the findings recorded on
Issue No. 1 are not final so as to operate res judicata against the
decree in the third suit which is the subject matter of challenge by
the State. It is contended that the State has filed cross objections
before hearing of the appeal though after the order of the High
Court, thus, the findings recorded on Issue No. 1 have not attained
finality which can operate as res judicata. It is contended that the
judgments referred to by the learned counsel for the respondents
are in the cases where the decree had attained finality. But none of
the judgments referred to by the learned counsel for the
respondents pertains to a finding recorded in a civil suit which was
dismissed and is subject matter of challenge in appeal by the
plaintiff himself.
46) On the other hand, Mr. Dushyant Dave, learned senior counsel for
the respondents argued that there is a categorical finding recorded
by the trial court that land does not fall in part of Survey No. 43 of
Bholakpur Village, as per the stand of the Appellants in all three
suits, therefore, it was mandatory for the defendants to impugn
such findings by way of an appeal in the first and second suit as
well. Since the State has not filed any appeal against the findings
recorded in the first and the second suit, the findings recorded
therein will operate as res judicata and the appeal arising out of the
third suit is barred by res judicata. Learned counsel for the
respondents relied upon the judgments of this Court in Badri
Narayan Singh v. Kamdeo Prasad Singh & Anr.29, Sheodan
Singh v. Daryao Kunwar (Smt.)30, Lonankutty v. Thomman &
Anr.31, Premier Tyres Limited v. Kerala State Road Transport
Corporation32, Harbans Singh & Ors. v. Sant Hari Singh &
Ors.33, Ashok Nagar Welfare Association & Anr. v. R. K.
Sharma & Ors.34, Nirmala Bala Ghose v. Balai Chand Ghose35,
Bhanu Kumar Jain v. Archana Kumar and Another36.
47) Mr. Dave submits that the judgments referred to by the learned
counsel for the appellants are not applicable to the facts of the
present case. He argued that res judicata applies not only to the
decree but it bars the Court to try any suit or issue in which the
matter has been directly and substantially in issue in former suit. It
is, thus, contended that principle of res judicata are not only
against the final judgment and decree but also in respect of any
finding recorded in the suit.
48) Mr. Jai Savla, learned senior counsel, relied upon another judgment
of this Court in Govindammal (D) by LRs & Ors. v.
Vaidyanathan & Ors.37 to contend that plea of res judicata is
applicable even in respect of co-defendants.
49) Respondent No. 8 in the written submissions relies upon Sri
Gangai Vinayagar Temple to contend that the filing of a Single
Appeal would lead to entire dispute becoming sub judice only if
suits are consolidated. Since, three suits in question were not
32 1993 Supp. (2) SCC 146 37 (2018) 14 SCALE 198 consolidated, therefore, non-filing of the appeal by the appellants
in first and second suit will operate as res judicata.
50) Learned counsel for the appellants has produced a photocopy of
the decree in the Original Suit No. 274 of 1983 which is to the
effect “that the suit be and the same is hereby dismissed”.
51) To appreciate arguments of the learned counsel for the parties,
certain statutory provisions from the Code need to be extracted
before the judgments referred to by the learned counsel for the
parties are considered.
“2(9) "judgment" means the statement given by the
Judge on the grounds of a decree or order;
2(2) "decree" means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a
plaint and the determination of any question
within section 144, but shall not include –
(c) any adjudication from which an appeal lies as an
appeal from an order, or
(d) any order of dismissal for default.
96. Appeal from original decree
(1) Save where otherwise expressly provided in the
body of this Code or by any other law for the time being
in force, an appeal shall lie from every decree passed by
any Court exercising original jurisdiction to the Court
authorized to hear appeals from the decisions of such
Court.
*** ***
Order XLI Rule 22. Upon hearing, respondent may
object to decree as if he had preferred a separate appeal
(1) Any respondent, though he may not have appealed
from any part of the decree, may not only support the
decree 38[but may also state that the finding against him
in the Court below in respect of any issue ought to have
been in his favour; and may also take any cross-
objection] to the decree which he could have taken by
way of appeal:
Provided he has filed such objection in the Appellate
Court within one month from the date of service on him
or his pleader of notice of the day fixed for hearing the
appeal, or within such further time as the Appellate Court
may see fit to allow.
19[Explanation.- A respondent aggrieved by a finding of
the Court in the judgement on which the decree
appealed against is based may, under this rule, file
cross-objection in respect of the decree in so far as it is
based on that finding, notwithstanding that by reason of
the decision of the Court on any other finding which is
sufficient for the decision of the suit, the decree, is,
wholly or in part, in favour of that respondent.]
Order XLI Rule 33. Power of Court of Appeal
The Appellate Court shall have power to pass any
decree and make any order which ought to have been
passed or made and to pass or make such further or
other decree or order as the case may require, and this
power may be exercised by the Court notwithstanding
that the appeal is as to part only of the decree and may
be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not
have filed any appeal or objection, and may, where there
have been decrees in cross-suits or where two or more
decrees are passed in one suit, be exercised in respect of
all or any of the decrees, although an appeal may not
have been filed against such decrees:
Provided that the Appellate Court shall not make any
order under section 35A, in pursuance of any objection
on which the Court from whose decree the appeal is
preferred has omitted or refused to make such order.
Section 11 - Res judicata
38 Inserted by Central Act No. 104 of 1976
No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
substantially in issue in a former suit between the same
parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and has
been heard and finally decided by such Court.
Explanation I - The expression "former suit" shall denote
a suit which has been decided prior to the suit in
question whether or not it was instituted prior thereto.”
52) The High Court referred to various judgments in respect of
applicability of the principle of res judicata, therefore, non-filing of
the appeal by the State in the other two suits operates as res
judicata. The High Court referred to a judgment of this Court in
Sheodan Singh wherein, this Court held that once a decree
passed in the suit attains finality, it cannot be disturbed indirectly
by adjudicating the very same questions in another appeal. We find
that the findings recorded by the High Court are patently erroneous
for the reasons recorded hereinafter. Therefore, non-filing of the
appeal by the State in the other two suits operates as res judicata
in the third suit.
53) The learned trial court had clubbed all the three suits and that
common evidence was recorded, when it recorded the following
fact:
“All the above three suits have been clubbed and a joint
trial has been held. O.S.No.274/83 has been taken as
the leading suit and the evidence recorded in that suit
has been taken as the evidence for the remaining two
suits also. The parties to all the three suits can be
divided into three groups…...”
54) Learned counsel for the respondents has tried to draw distinction
between an order of consolidation of suits and the order where a
common judgment is rendered in different suits. In Sri Gangai
Vinayagar Temple, the Court referred to judgment in Chitivalasa
Jute Mills. However, we find that distinction drawn by learned
counsel for the respondents is not tenable in law. Chitivalasa Jute
Mills is a case where one suit was filed at Reva in Madhya Pradesh
and another in Vishakhapatnam. The Court noticed that claim in
one suit is a defense in another suit, therefore, the order was
passed for transfer of a subsequent suit filed at Reva to
Vishakhapatnam.
55) In the present case, evidence have been recorded only in one suit
as all the three suits have been clubbed together. In view of the
said fact, we find that merely the word consolidation has not been
used by the learned trial court, therefore, it will not be a case of
consolidation of suits but of separate trials.
56) In Banarsi, the provisions of Order XLI Rule 22 of the Code as it
existed before and after the amendment in 1976 as well as Order
XLI Rule 33 of the Code have been considered. The said judgment
arises out of a fact where a suit for specific performance of an
agreement was filed by the respondent in appeal before this Court.
The appellants also filed a suit seeking cancellation of the
agreement, the basis of the suit for specific performance. The
learned trial court ordered the appellants to deposit a sum of
Rs.2,40,000/- but the decree for specific performance was not
granted. Two appeals were taken up for hearing preferred by the
appellants by the learned Additional District Judge. Both the
appeals were dismissed but without any cross objections or an
appeal, the Court decreed the suit for specific performance filed by
the plaintiffs. The second appeal before the High Court was
dismissed. It was held that the First Appellate Court committed no
error of law exercising the powers under Order XLI Rule 33 of the
Code to pass a decree for specific performance.
57) This Court examined the question as to whether decree for specific
performance could be granted once declined by the trial court
without filing any appeal or cross-objections. The Court held as
under:
"8. Sections 96 and 100 CPC make provision for an
appeal being preferred from every original decree or
from every decree passed in appeal respectively; none
of the provisions enumerates the person who can file
an appeal. However, it is settled by a long catena of
decisions that to be entitled to file an appeal the person
must be one aggrieved by the decree. Unless a person
is prejudicially or adversely affected by the decree he is
not entitled to file an appeal. (See Phoolchand v. Gopal
Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153] , Jatan
Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3
SCC 573] and Ganga Bai v. Vijay Kumar[(1974) 2 SCC
393] .) No appeal lies against a mere finding. It is
significant to note that both Sections 96 and 100 CPC
provide for an appeal against decree and not
against judgment.
9. Any respondent though he may not have filed an
appeal from any part of the decree may still support the
decree to the extent to which it is already in his favour
by laying challenge to a finding recorded in the
impugned judgment against him…………………………A
party who has fully succeeded in the suit can and needs
to neither prefer an appeal nor take any cross-objection
though certain finding may be against him. Appeal and
cross-objection — both are filed against decree and not
against judgment and certainly not against any finding
recorded in a judgment. This was the well-settled
position of law under the unamended CPC.”
58) This Court while considering the amendments made in the Code in
the year 1976, held that even under the amended provisions of
Order XLI Rule 22 of the Code, a party in whose favour the decree
stands in its entirety is neither entitled nor obliged to prefer any
cross objections. However, by an amendment in Order XLI Rule 22
of the Code, it is permissible to file cross objections against the
finding. The respondent may defend himself without filing any
cross objections to the extent to which decree is in his favour. The
Court held as under:
"10. The CPC amendment of 1976 has not materially
or substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer
any cross-objection. However, the insertion made in
the text of sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference which
has resulted we will shortly state. A respondent
may defend himself without filing any cross-objection
to the extent to which decree is in his favour; however,
if he proposes to attack any part of the decree he
must take cross-objection. The amendment inserted
by the 1976 amendment is clarificatory and also
enabling and this may be made precise by analysing
the provision. There may be three situations:
(i) The impugned decree is partly in favour of
the appellant and partly in favour of the
respondent.
(ii) The decree is entirely in favour of the
respondent though an issue has been decided
against the respondent.
(iii) The decree is entirely in favour of the
respondent and all the issues have also been
answered in favour of the respondent but there
is a finding in the judgment which goes against
the respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross-objection
against that part of the decree which is against him if
he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support
without taking any cross-objection. The law remains so
post-amendment too. In the type of cases (ii) and (iii)
pre-amendment CPC did not entitle nor permit the
respondent to take any cross-objection as he was not
the person aggrieved by the decree. Under the
amended CPC, read in the light of the explanation,
though it is still not necessary for the respondent to
take any cross-objection laying challenge to
any finding adverse to him as the decree is entirely in
his favour and he may support the decree without
cross-objection; the amendment made in the text of
sub-rule (1), read with the explanation newly inserted,
gives him a right to take cross-objections to a finding
recorded against him either while answering an issue
or while dealing with an issue. The advantage of
preferring such cross-objection is spelt out by sub-rule
(4). In spite of the original appeal having been
withdrawn or dismissed for default, the cross-objection
taken to any finding by the respondent shall still be
available to be adjudicated upon on merits which
remedy was not available to the respondent under the
unamended CPC. In the pre-amendment era, the
withdrawal or dismissal for default of the original
appeal disabled the respondent to question the
correctness or otherwise of any finding recorded
against the respondent.”
59) The present is a case where the decree is of dismissal of suit
therefore, entirely in favour of the State and not executable.
Though an issue has been decided against the State as falling
within second and third situation delineated by this Court. This
Court held that in the absence of cross appeals or cross objections,
the First Appellate Court did not have the jurisdiction to modify the
decree that is to grant decree for specific performance which was
not granted by the trial court.
60) The Court did not find any merit in the argument that the Appellate
Court was not powerless to grant decree as such decree has been
granted in terms of Order XLI Rule 33 of the Code. The Court held
"15. … While allowing the appeal or otherwise
interfering with the decree or order appealed against,
the appellate court may pass or make such further or
other, decree or order, as the case would require being
done, consistently with the findings arrived at by the
appellate court. The object sought to be achieved by
conferment of such power on the appellate court is to
avoid inconsistency, inequity, inequality in reliefs
granted to similarly placed parties and unworkable
decree or order coming into existence. The overriding
consideration is achieving the ends of justice. Wider the
power, higher the need for caution and care while
exercising the power. Usually the power under Rule 33
is exercised when the portion of the decree appealed
against or the portion of the decree held liable to be set
aside or interfered by the appellate court is so
inseparably connected with the portion not appealed
against or left untouched that for the reason of the
latter portion being left untouched either injustice
would result or inconsistent decrees would follow. The
power is subject to at least three limitations: firstly, the
power cannot be exercised to the prejudice or
disadvantage of a person not a party before the court;
secondly, a claim given up or lost cannot be revived;
and thirdly, such part of the decree which essentially
ought to have been appealed against or objected to by
a party and which that party has permitted to achieve a
finality cannot be reversed to the advantage of such
party. A case where there are two reliefs prayed for and
one is refused while the other one is granted and the
former is not inseparably connected with or necessarily
depending on the other, in an appeal against the latter,
the former relief cannot be granted in favour of the
respondent by the appellate court exercising power
under Rule 33 of Order 41.”
61) Such view of the Court has been followed in a judgment in
Hardevinder Singh. The said judgment arises out of a suit filed
for possession of the suit land, challenging the Will said to be
executed in favour of the defendants. The suit for joint possession
was decreed holding that the Will is surrounded by suspicious
circumstances and that the suit land was joint Hindu family
property. In an appeal, the First Appellate Court recorded a finding
that the property of the deceased Shiv Singh was self-acquired and
that the Will in favour of defendant Nos. 1 to 4 was validly
executed. The First Appellate Court dismissed the suit for the
reason that there is a settlement between the parties. The
defendant No. 5, brother of the Plaintiff who had similar interest as
that of the plaintiff, aggrieved against the said judgment and
decree passed by the First Appellate Court filed the second appeal,
which was dismissed as not maintainable. In these circumstances,
this Court held that a person has a right to maintain an appeal if
such person is prejudicially or adversely affected by a decree. It
was held that defendant No. 5, brother of the plaintiff benefited
from the decree granted by the trial court but the plaintiff has
settled the dispute with defendant Nos. 1 to 4, the rights of
defendant No. 5 were unsettled and the benefit accrued in his
favour became extinct, therefore, he had suffered a legal injury
which could be challenged in second appeal. With the said finding,
the judgment of the High Court was set aside and the matter was
remitted to the High Court to decide afresh. This Court held as
under:
"21. After the 1976 Amendment of Order 41 Rule 22,
the insertion made in sub-rule (1) makes it permissible
to file a cross-objection against a finding. The difference
is basically that a respondent may defend himself
without taking recourse to file a cross-objection to the
extent the decree stands in his favour, but if he intends
to assail any part of the decree, it is obligatory on his
part to file the cross-objection. In Banarsi v. Ram
Phal [(2003) 9 SCC 606 : AIR 2003 SC 1989] , it has
been observed that the amendment inserted in 1976 is
clarificatory and three situations have been adverted to
therein. Category 1 deals with the impugned decree
which is partly in favour of the appellant and partly in
favour of the respondent. Dealing with such a situation,
the Bench observed that in such a case, the respondent
must file an appeal or take cross-objection against that
part of the decree which is against him if he seeks to
get rid of the same though he is entitled to support that
part of the decree which is in his favour without taking
any cross-objection. In respect of two other categories
which deal with a decree entirely in favour of the
respondent though an issue had been decided against
him or a decree entirely in favour of the respondent
where all the issues had been answered in his favour
but there is a finding in the judgment which goes
against him, in the pre-amendment stage, he could not
take any cross-objection as he was not a person
aggrieved by the decree. But post-amendment, read in
the light of the Explanation to sub-rule (1), though it is
still not necessary for the respondent to take any cross-
objection laying challenge to any finding adverse to him
as the decree is entirely in his favour, yet he may
support the decree without cross-objection. It gives him
the right to take cross-objection to a finding recorded
against him either while answering an issue or while
dealing with an issue. It is apt to note that after the
amendment in the Code, if the appeal stands withdrawn
or dismissed for default, the cross-objection taken to a
finding by the respondent would still be adjudicated
upon on merits which remedy was not available to the
respondent under the unamended Code.”
(emphasis Supplied)
62) The judgment in Sri Gangai Vinayagar Temple is relied upon by
both the parties. Learned counsel for the appellants relies upon
para 25 of the order whereas, counsel for the respondents relies
upon para 27 of the order. Both the paragraphs read as under:
“25. On the issue of applicability of res judicata in cases
where two or more suits have been disposed of by one
common judgment but separate decrees, and where the
decree in one suit has been appealed against but not
against the others, various High Courts have given
divergent and conflicting opinions and decisions……….
……..Without adverting to the details of those cases, it
is sufficient to note that the hesitancy or reluctance to
the applicability of the rigorous of res judicata flowed
from the notion that Section 11 of the Code refers only
to “suits” and as such does not include “appeals” within
its ambit; that since the decisions arrived in the
connected suits were articulated simultaneously, there
could be no “former suit” as stipulated by the said
section; that substance, issues and finding being
common or substantially similar in the connected suits
tried together, non-filing of an appeal against one or
more of those suits ought not to preclude the
consideration of other appeals on merits; and that the
principle of res judicata would be applicable to the
judgment, which is common, and not to the decrees
drawn on the basis of that common judgment.
27. Procedural norms, technicalities and processal law
evolve after years of empirical experience, and to
ignore them or give them short shrift inevitably defeats
justice. Where a common judgment has been delivered
in cases in which consolidation orders have specifically
been passed, we think it irresistible that the filing of a
single appeal leads to the entire dispute becoming sub
judice once again. Consolidation orders are passed by
virtue of the bestowal of inherent powers on the courts
by Section 151 CPC, as clarified by this Court in
Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3
SCC 85. In the instance of suits in which common issues
have been framed and a common trial has been
conducted, the losing party must file appeals in respect
of all adverse decrees founded even on partially
adverse or contrary speaking judgments. While so
opining we do not intend to whittle down the principle
that appeals are not expected to be filed against every
inconvenient or disagreeable or unpropitious or
unfavourable finding or observation contained in a
judgment, but that this can be done by way of cross-
objections if the occasion arises. The decree not
assailed thereupon metamorphoses into the character
of a “former suit”. If this is not to be so viewed, it would
be possible to set at naught a decree passed in Suit A
by only challenging the decree in Suit B. Law considers
it an anathema to allow a party to achieve a result
indirectly when it has deliberately or negligently failed
to directly initiate proceedings towards this purpose.
Laws of procedure have picturesquely been referred to
as handmaidens to justice, but this does not mean that
they can be wantonly ignored because, if so done, a
miscarriage of justice inevitably and inexorably ensues.
Statutory law and processual law are two sides of the
judicial drachma, each being the obverse of the other.
In the case in hand, had the tenant diligently filed an
appeal against the decree at least in respect of OS No.
5 of 1978, the legal conundrum that has manifested
itself and exhausted so much judicial time, would not
have arisen at all.”
63) It may be noticed that separate decree is required to be preferred
in each suit even though the suits are consolidated. The three-
Judge Bench in Sri Gangai Vinayagar Temple has categorically
held that where a common judgment has been delivered in cases
in which consolidation orders have been passed, the filing of an
appeal leads to the entire dispute becoming sub judice again. The
aforesaid judgment arises out of the fact whether tenant has filed a
suit to protect its possession during the lease period which was
coming to an end on January 1, 1983, claiming injunction not
specifically challenging the alienation by the trustees of a public
trust. The trustees have filed two separate suits for claiming
arrears of rent, one for claiming Rs. 268/- and another for Rs.
2600/.
64) The tenant’s suit and the suit for the recovery of Rs. 2600/- were
dismissed. Only one appeal was preferred by the tenant against
the decree passed in the suit for recovery of Rs. 268/-. In these
circumstances, it was held that since the claim of the tenant in his
suit was substantially in respect of the right of the trustees to
alienate the property of the trust as alleged by the tenant, which is
the issue in the other suits as well, therefore, the decree in the suit
for injunction filed by the plaintiff would operate as res judicata.
But in the present case, an appeal in the first and second suit is
pending in which the appellant has right to support decree in terms
of Order XLI Rules 22 and 33 of the Code.
65) Learned counsel for the respondents strongly relies upon a
Constitution Bench judgment of this Court in Badri Narayan
Singh to contend that the findings recorded in one appeal operate
as res judicata in the second appeal. To appreciate such argument,
some facts leading to the said judgment need to be mentioned.
The election of the appellant was challenged before the Election
Tribunal on the ground that the appellant was holding an office of
profit and, therefore, it is against the provisions of Section 7 of the
Representation of the People Act, 1951. There was allegation that
appellant had also committed corrupt practices. On the other hand,
respondent filed a petition praying for the declaration that the
election of the appellant was void and also claimed declaration that
he was duly elected having polled more votes after appellant-
elected candidate. The Election Tribunal found that the appellant
was not holder of office of profit but held that he is guilty of corrupt
practices. The election of the appellant was set aside but did not
grant the declaration that the respondent was duly elected
candidate. The appellant filed Election Appeal No. 7 of 1958
whereas the respondent filed Election Appeal No. 8 of 1958 in the
High Court against the order of the Election Tribunal. The appeal
filed by the appellant was dismissed holding that he was holding
office of profit but has not indulged in corrupt practice whereas the
appeal filed by the respondent was allowed by a common judgment
declaring the respondent to be duly elected. The appellant filed
appeal before this Court only against the order in Appeal No. 8 of
1958. All the grounds of the appeal relate to the finding of the
High Court in Appeal No. 7 of 1958. In appeal before this Court, a
preliminary objection was taken that no appeal was preferred by
the appellant against the order of the High Court in Appeal No. 7 of
1958. The Court distinguished the earlier judgment in Narhari. It
held that though Appeal Nos. 7 and 8 of 1958 arose out of one
proceeding but subject matter of each appeal was different,
therefore, the final judgment would operate as res judicata. The
relevant findings read as under:
“14. It is true that both the Appeals Nos. 7 and 8 before
the High Court arose out of one proceeding before the
Election Tribunal. The subject-matter of each appeal
was, however, different. The subject-matter of Appeal
No. 7 filed by the appellant related to the question of
his election being bad or good, in view of the pleadings
raised before the Election Tribunal. It had nothing to do
with the question of right of Respondent 1 to be
declared as duly elected candidate……….. The finding
about his holding an office of profit served the purpose
of both the appeals, but merely because of this the
decision of the High Court in each appeal cannot be
said to be one decision. The High Court came to two
decisions. It came to one decision in respect of the
invalidity of the appellant's election in Appeal No. 7. It
came to another decision in Appeal No. 8 with respect
to the justification of the claim of Respondent 1 to be
declared as a duly elected candidate, a decision which
had to follow the decision that the election of the
appellant was invalid and also the finding that
Respondent 2, as Ghatwal, was not a properly
nominated candidate. We are therefore of opinion that
so long as the order in the appellant's appeal No. 7
confirming the order setting aside his election on the
ground that he was a holder of an office of profit under
the Bihar Government and therefore could not have
been a properly nominated candidate stands, he cannot
question the finding about his holding an office of profit,
in the present appeal, which is founded on the
contention that that finding is incorrect.”
(Emphasis Supplied)
66) The said judgment has no applicability to the facts of the present
case as the decree in Civil Suit No. 274 of 1983 or 276 of 1983 has
not attained finality and the same are still subject matter of appeal
before the First Appellate Court wherein, the findings recorded by
the trial court can be set aside while maintaining ultimate decree of
dismissal of the suit. In Badri Narayan Singh, the decision in an
appeal became final, holding the appellant to be not duly elected
candidate. The Appeal No. 8 of 1958 was in respect of declaration
that the respondent shall be deemed to be elected candidate.
Therefore, in the absence of finality of judgments, there cannot be
any question of such finding binding in the third suit.
67) The Narhari arises out of a suit for possession of 1/3 share of land
from the 2 sets of defendants. The suit was partly decreed. The
trial court decreed the suit; however, two appeals were preferred
by two sets of defendants. Both the appeals were allowed and the
suit was dismissed. The plaintiff filed one appeal after filing the
consolidated court fee for the whole suit and by impleading all the
defendants as respondents. The argument raised was that the
plaintiff has filed only one appeal, therefore, the findings recorded
in the other appeal will operate res judicata in the second appeal
preferred by the plaintiff. The Court held as under:
“5. …..The question of res judicata arises only when
there are two suits. Even when there are two suits, it
has been held that a decision given simultaneously
cannot be a decision in the former suit. When there is
only one suit, the question of res judicata does not arise
at all and in the present case, both the decrees are in
the same case and based on the same judgment, and
the matter decided concerns the entire suit. As such,
there is no question of the application of the principle of
res judicata. The same judgment cannot remain
effective just because it was ap- pealed against with a
different number or a copy of it was attached to a
different appeal. The two decrees in sub- stance are
one. Besides, the High Court was wrong in not giving to
the appellants the benefit of section 5 of the Limitation
Act because there was conflict of decisions regarding
this question not only in the High Court of the State but
also among the different High Courts in India……”
68) Ganga Bai is the judgment arising out of the proceeding prior to
amendment of Order XLI Rule 22 of the Code. The High Court held
that the first appeal filed by defendant Nos. 2 and 3 was not
maintainable even though the suit was wholly dismissed against
them. The Court held that right of appeal is a creature of statute
and that it is not inherent right. It was held as under:
"17. These provisions show that under the Code of Civil
Procedure, an appeal lies only as against a decree or as
against an order passed under rules from which an
appeal is expressly allowed by Order 43 Rule 1. No
appeal can lie against a mere finding for the simple
reason that the Code does not provide for any such
appeal. It must follow that First Appeal No. 72 of 1959
filed by Defendants 2 and 3 was not maintainable as it
was directed against a mere finding recorded by the trial
court.
xx xx xx
21. Thus, the appeal filed by Defendants 2 and 3 being
directed against a mere finding given by the trial court
was not maintainable…"
69) In Ramesh Chandra, the Court held that one of the tests to
ascertain if a finding operates as res judicata is that the party
aggrieved could challenge it by way of an appeal. The Court held
“3. One of the tests to ascertain if a finding operates
as res judicata is if the party aggrieved could
challenge it. Since the dismissal of appeal or the
appellate decree was not against defendants. 2 and 3
they could not challenge it by way of appeal. Even
assuming that defendant 1 could challenge the finding
that liability of rent was of defendants 2 and 3 as they
were in possession, he did not file any written
statement in the trial court raising any dispute
between himself and defendants 2 and 3. There was
thus no occasion for the appellate court to make the
observation when there was neither pleading nor
evidence……”
70) In another judgment reported as S. Nazeer Ahmed, it has been
held that the appellant without filing a memorandum of cross-
objections in terms of Order XLI Rule 22 of the Code, could
challenge the finding of the trial court. The respondent in an
appeal is entitled to support the decree of the trial court even by
challenging any of the findings that might have been rendered by
the trial court against himself. For supporting the decree passed by
the trial court, it is not necessary for a respondent in the appeal, to
file a memorandum of cross- objections challenging a particular
finding that is rendered by the trial court against him when the
ultimate decree itself is in his favour. The court held as under:
“7. The High Court, in our view, was clearly in error in
holding that the appellant not having filed a
memorandum of cross-objections in terms of Order 41
Rule 22 of the Code, could not challenge the finding of
the trial court that the suit was not barred by Order 2
Rule 2 of the Code. The respondent in an appeal is
entitled to support the decree of the trial court even by
challenging any of the findings that might have been
rendered by the trial court against himself. For
supporting the decree passed by the trial court, it is not
necessary for a respondent in the appeal, to file a
memorandum of cross-objections challenging a
particular finding that is rendered by the trial court
against him when the ultimate decree itself is in his
favour. A memorandum of cross-objections is needed
only if the respondent claims any relief which had been
negatived to him by the trial court and in addition to
what he has already been given by the decree under
challenge. We have therefore no hesitation in accepting
the submission of the learned counsel for the appellant
that the High Court was in error in proceeding on the
basis that the appellant not having filed a
memorandum of cross-objections, was not entitled to
canvas the correctness of the finding on the bar of
Order 2 Rule 2 rendered by the trial court.”
71) Mr. Dave vehemently argued that res judicata in terms of Section
11 of the Code is not about a decree but to a finding in the former
suit. It is argued that the first suit and second suit are the former
suits in which the findings were written against the State,
therefore, such findings will operate res judicata. The said
argument proceeds on the basis that the Court would mean the
High Court and, therefore, finding in the first and second suit would
bar the subsequent proceedings arising out of the third suit in
appeal. We find that such an argument is not tenable. As
mentioned above, that the decree of dismissal of the first and
second suit has not attained finality which are under challenge by
the plaintiffs and the defendants-State are entitled to dispute
findings on Issue No. 1 even without filing cross objections or in
terms of Order XLI Rule 33 of the Code that the decree of dismissal
of suit on the grounds other than what weighed with the learned
trial court. All the issues are open for consideration before the First
Appellate Court.
72) Section 11 and Explanation I of the Code would be applicable in
subsequent proceedings between the same parties or between the
parties under whom they or any of them claimed under the same
title. But the findings in the first and second suit will not operate as
res judicata as such findings are subject matter of challenge in the
appeals filed by the plaintiffs in their respective suits. All the three
suits have been decided together and the three appeals pending
against such judgment and decrees. Therefore, it cannot be said
that the first and the second suit are the former suits as the decree
passed therein has not attained finality. The findings recorded
therein will not, therefore, operate as res judicata as the State is
not obliged to challenge findings on Issue No.1 in the first and
second suit even after the amendment of Order XLI Rule 22 of the
Code.
73) This Court in Lonankutty has examined the applicability of the
principles of Section 11 in a matter wherein two suits were filed.
Civil Suit No. 666 of 1954 was filed by the appellant for an
injunction from taking water from Survey No. 673 and discharge
the water back through Survey No. 673 and for a mandatory
injunction directing them to demolish the bund and close the sluice
gates. The respondents filed Civil Suit No. 5 of 1957 for an
injunction restraining the appellant from trespassing on the bund
constructed by them and for preventing the appellant from
interfering with their right to take water from Survey No. 673 and
to discharge the water back through that land. The second was
subsequent suit. The suit of the appellant was decreed. However,
the suit of the respondents was dismissed but decreed to the
extent of the right claimed regarding the agriculture use. The result
of decrees passed in two suits was that the respondents could take
water from the land of the appellant and discharge for agricultural
purposes only and not for fishing. Both filed two appeals arising out
of two suits. However, all the appeals were dismissed. No appeal
came to be filed arising out of second suit filed by the respondents.
It is in these circumstances it was held that the suit filed by the
respondents, though after the suits of the plaintiff, would be
deemed to be former suits as the decree in the said suit has
attained finality. The Court held as under:
"19. Respondents did not file any further appeal
against the decree passed by the District Court in the
appeals arising out of their suit. They filed a second
appeal in the High Court, only as against the decree
passed by the District Court in AS No. 66 of 1958 which
arose out of the decree passed by the trial court in the
appellant's suit. Thus, the decision of the District Court
rendered in the appeal arising out of the respondents'
suit became final and conclusive. That decision, not
having been appealed against, could not be reopened in
the second appeal arising .out of the appellant's suit…
xx xx xx
21. In its remanding judgment dated July 8, 1964, by
which the plea of res judicata was repelled, the High
Court relied principally on the decision of this Court in
Narhari v. Shankar [AIR 1953 SC 419 : 1950 SCR 754;] .
That decision is in our opinion distinguishable because
in that case only one suit was filed giving rise to 2
appeals. A filed a suit against B and C which was
decreed. B and C preferred separate appeals which
were allowed by a common judgment, but the appellate
court drew 2 separate decrees. A preferred an appeal
against one of the decrees only and after the period of
limitation was over, he preferred an appeal against the
other decree on insufficient court fee. The High Court
held that A should have filed 2 separate appeals and
since one of the appeals was time barred, the appeal
filed within time was barred by res judicata. This Court
held that “there is no question of the application of the
principle of res judicata”, because “when there is only
one suit, the question of res judicata does not arise at
all”. This was put on the ground that “where there has
been one trial, one finding, and one decision, there
need not be two appeals even though two decrees may
have been drawn up”. In our case, there were 2 suits
and since the appellate decree in one of the suits had
become final, the issues decided therein could not be
reopened in the second appeal filed against the decree
passed in an appeal arising out of another suit. This
precisely is the ground on which Narhari case was
distinguished by this Court in Sheodan Singh v. Smt
Daryao Kunwar [AIR 1966 SC 1332: (1966) 3 SCR 300].
It was held therein that where the trial court has
decided 2 suits having common issues on the merits
and there are two appeals therefrom the decision in one
appeal will operate as res judicata in the other appeal.”
74) The reliance of Mr. Dave on the judgment in Ashok Nagar
Welfare Association is not relevant for the present case as
question examined was the scope of interference in the Special
Leave Petition. That was a case whether an ex parte decree
granted in two suits by the trial court was set aside in appeal. The
Special Leave Petition was directed against such order. This Court
has rightly not interfered with the setting aside the ex parte
judgment. Bhanu Kumar Jain is also a case delineating the
remedies available to a defendant in the event of an ex parte
decree granted. The said judgment is not applicable to the facts of
the present case.
75) Another judgment referred to by Mr. Dave is Nirmala Bala Ghose.
In the said case, the decree against deity had attained finality in
two suits. It was held that it is not open to another defendant to
challenge the decree insofar as it is against deities. The Court has
held as under:
“23. In this appeal, the two deities are also impleaded
as party respondents. But the deities have not taken
part in the proceeding before this Court, as they did
not in the High Court. The decree against the two
deities has become final, no appeal having been
preferred to the High Court by the deities. It is not
open to Nirmala to challenge the decree insofar as it is
against the deities, because she does not represent
the deities. The rights conferred by the deed Ext. 11
upon Nirmala are not affected by the decree of the
trial court. She is not seeking in this appeal to claim a
mere exalted right under the deed for herself, which
may require re-examination even incidentally of the
correctness of the decision of the trial court and the
High Court insofar as it relates to the title of the
deities. It was urged, however, that apart from the
claim which Nirmala has made for herself, the Court
has power and is indeed bound under Order 41 Rule
33 Code of Civil Procedure to pass a decree, if on a
consideration of the relevant provisions of the deed,
this Court comes to the conclusion that the deed
operates as an absolute dedication in favour of the
two deities. Order 41 Rule 313, insofar as it is
material, provides:
"The appellate court shall have power to pass
any decree and make any order which ought to
have been passed or made and to pass or
make such further or other decree or order as
the case may require, and this power may be
exercised by the Court notwithstanding that
the appeal is as to part only of the decree and
may be exercised in favour of all or any of the
respondents or parties, although such
respondents or parties may not have filed any
appeal or objection:"
The rule is undoubtedly expressed in terms which are
wide, but it has to be applied with discretion, and to
cases where interference in favour of the appellant
necessitates interference also with a decree which has
by acceptance or acquiescence become final so as to
enable the Court to adjust the rights of the parties.
Where in an appeal the Court reaches a conclusion
which is inconsistent with the opinion of the Court
appealed from and in adjusting the right claimed by
the appellant it is necessary to grant relief to a person
who has not appealed, the power conferred by Order
41 Rule 33 may properly be invoked. The rule however
does not confer an unrestricted right to re-open
decrees which have become final merely because the
appellate Court does not agree with the opinion of the
Court appealed from.”
76) We find that the High Court has failed to draw the distinction
between the decree and a finding on an issue. It is the decree
against which an appeal lies in terms of Section 96 of the Code.
Decree in terms of Section 2(2) of the Code means formal
expression of an adjudication conclusively determining the rights of
the parties. The defendants-State could not file an appeal against
a decree which was of a dismissal of a suit simpliciter. The findings
on Issue No. 1 against the State could be challenged by way of
cross-objections in terms of amended provisions of Order XLI Rule
22 of the Code but such filing of cross-objections is not necessary
to dispute the findings recorded on Issue No. 1 as the defendants
have a right to support the ultimate decree passed by the trial
court of dismissal of suit on grounds other than which weighed with
the learned trial court. Even in terms of Order XLI Rule 33 of the
Code, the Appellate Court has the jurisdiction to pass any order
which ought to have been passed or made in proceedings before it.
77) As per facts on record, Original Suit Nos. 274 of 1983 and 276 of
1983 have been dismissed. The plaintiffs are in appeal in both the
suits before the First Appellate Court. Therefore, such decree
including the finding on Issue No. 1 has not attained finality as the
Appellate Court is ceased of the entire controversy including the
findings of fact on Issue No. 1. The defendants have a right to
dispute such findings by filing cross-objections under Order XLI
Rule 22 of the Code as amended in the year 1976 or even in the
exercise of the powers conferred on the Appellate Court under
Order XLI Rule 33 of the Code.
78) The decree is of dismissal of the suit, whereas, the reasons for
passing such decree is judgment as defined in Section 2(9) of the
Code. In terms of Section 11 read with Explanation I, the issue in a
former suit will operate as res judicata only if such issue is raised in
a subsequent suit. Since, the issue of title has not attained finality,
therefore, it is not a former suit to which there can be any
application of Section 11.
79) In view of the above, we allow the present appeals, set aside the
order passed by the High Court in the first appeal filed by the
State, as the findings on Issue Nos. 1 and 2 in the first and second
suit do not operate as res judicata. The pending applications, if
any, shall stand disposed of.
80) In view of the orders in the appeals, Contempt Petition (Civil) No.
204 of 2014 is disposed of.