Law Web: Whether defendant can file cross objection if suit against it is dismissed in default?

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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 17486 OF 2017

STATE OF ANDHRA PRADESH Vs B. RANGA REDDY

HEMANT GUPTA, J.

Dated: AUGUST 09, 2019.

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

Page 1 of 33

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

1) Whether the suit property is part of Sy. No. 9/13 of

Khairatabad Village as claimed by the plaintiff or

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

Village as claimed by the Government?

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.

2) Whether the plaintiff is entitled for declaration of his

title to the suit property and whether he is entitled for

the consequential relief of permanent injunction or in

the alternative for possession of the suit property?

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.

3) To what relief?

Finding

Para 44. In the result, the suit is dismissed with costs.

ORIGINAL SUIT NO. 276 OF 1983 – SECOND SUIT

Issues

1) Whether the suit property is part of Sy. No. 9/13 of

Khairatabad Village as claimed by the plaintiff or

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

Village as claimed by the Government?

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.

2) Whether the plaintiff is entitled for declaration of his

title to the suit property and Whether he is entitled for

the consequential relief of permanent injunction or in

the alternative for possession of the suit property?

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.

3) To what relief?

Finding

Para 49. In the result, the suit is dismissed with costs.

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.

3) To what relief?

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

filing cross-objections the Government cannot

challenge the findings of the trial court."

5) Mr. Vaidyanathan, learned senior counsel for the State relied upon

1 for short, ‘Code'

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

2 AIR 1953 SC 419

3 (1974) 2 SCC 393

4 (2003) 9 SCC 606

5 (2013) 9 SCC 261

6 (2015) 3 SCC 624

7 (2004) 3 SCC 85

8 AIR 1991 SC 264

9 (2007) 11 SCC 75

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

10 1962 (3) SCR 759

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

Appeal would lead to entire dispute becoming sub judice only if

suits are consolidated. Since, three suits in question were not

11 1966 (3) SCR 300

12 (1976) 3 SCC 528

13 1993 Supp. (2) SCC 146

14 (2009) 2 SCC 526

15 (2002) 1 SCC 749

16 1965 (3) SCR 550

17 (2005) 1 SCC 787

18 (2018) 14 SCALE 198

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.

Section 11 - Res judicata

19 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.”

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

as under:

"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.

xxx xxx xxx

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 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/.

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 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)

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

Page 23 of 33

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

Page 24 of 33

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

as under:

“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

Page 26 of 33

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'

Page 28 of 33

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

Page 30 of 33

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