Maintainability of the present appeal
(A) Res Judicata
39. At the outset, the respondents contend that the present appeal is not maintainable and that, if maintainable, propriety demands that it should be dismissed as otherwise it may give rise to conflicting decrees in the same cause of action.
40. The present appeal is only at the instance of the sole-appellant Bajranglal, who was Defendant No. 8 in the original suit filed by the Respondent No. 8 (original plaintiff). The decree made by the High Court qua other respondents (original defendants) has attained finality since defendants 1-4, 6 and 7 in that suit did not challenge the judgment dated 2/5.4.93 made by the Division Bench of the Bombay High Court and the consequent decree. The original defendants 1, 2 and 7 did not participate in the proceedings before the High Court and the suit was contested only by defendant No. 5 Shyamsunder and defendant No. 8 Bajaranglal (the present appellant).Respondents contend that inasmuch as the appeal filed by Shyamsunder, original defendant No. 5, being C.A. No. 7490/93 was dismissed by this Court on 15th January, 2001 for non prosecution, the judgment of the Division Bench of the Bombay High Court operates as res-judicata. It is urged that the judgment and decree has become final as against Bajaranglal and all other defendants in the original suit. Even otherwise, it is urged that the present appeal must be dismissed as otherwise it may give rise to conflicting decrees.
41. It is not possible to accept that the principle of res-judicata will apply to bar the appeal. Section 11 of the CPC would bar the Court from trying any suit or issue in which the matter "directly and substantially in issue" between the same parties or between the parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or suit in which such issue has been subsequently raised, has been "heard and finally decided by such Court". In the present case, Bajaranglal and Shyamsunder were defendants in the Original Suit No. 118 of 1973. The suit was dismissed and the plaintiff Satyavati carried an appeal to the Division Bench. In the appeal, both Bajranglal and Shyamsunder were respondents . The Division Bench, reversed the Single Judge's judgment and decreed the suit by its judgment. As the respondents in the appeal before the Division Bench both Bajranglal and Shyamsunder were aggrieved by the decree against them. The present appellant Bajranglal filed SLP No. 8425/93 on 27.5.1993. while Shyamsundar filed his appeal No. SLP 18492/93 on 17.12.1993.
42. Leave was granted in Bajranglal's appeal on 4.10.1993 while leave was granted in Shyamsundar's case on 17.12.1993. Subsequently, Bajranglal's appeal was numbered as Civil Appeal No. 5293 while Shyamsundar's appeal was numbered as Civil Appeal No. 7490/93. Shyamsundar's appeal was dismissed for default for non-removal of office objections on 15.1.2000. Thus, it is obvious that both in the matter of filing the SLP and granting of leave, Bajranglal's appeal was earlier and Shamsundar's was later in time. In these circumstances, we are unable to accept the contention that an order dismissing a subsequent appeal for default can operate as res-judicata in respect of an earlier appeal. Neither Section 11 of the CPC, nor any principle derivable therefrom, would bar the appeal as contended by the respondents. The contention is misconceived and we see no merit in the contention. In our judgment, the appeal is perfectly maintainable.
B. Conflict of decrees
43. The respondents then contend that, even if the appeal is not liable to be dismissed on the principle of res-judicata, even otherwise the appeal should be dismissed as it may result in conflicting decrees. Upon dismissal for default of Civil Appeal No. 7490/93, the decree made by the High Court became final as against Shyamsundar. If the present appeal is allowed, resulting in setting aside the decree or making any modification thereof, it would result in the anomalous situation of there being conflicting decrees between the same parties, arising out of same cause of action, is the contention.
44. In our view, this contention has no merit. Where there are several defendants, who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree by an appeal in his own right, the fact that the other defendants do not choose to challenge the decree or that they have lost their right to challenge the decree, cannot render the appeal of the appealing defendant infructuous on this ground. In fact, Rule 4 and Rule 33 of Order XLI of the CPC are enacted to deal with such a situation.
67. In our view, this is the litmus test to decide whether an appeal should be dismissed for possible conflict of decrees or not applying this test; it appears to us that the appeal before us cannot be dismissed. Shyamsunder is the 5th respondent before us, who has been served, but has chosen to remain absent. The fact that Shyamsunder's own appeal failed for non-compliance with the office objections cannot have the consequence of defeating the appeal of the present appellant Bajaranglal. Order XLI Rule 4 read with Rule 33 invests this Court with sufficient power to entertain the appeal of Bajranglal before us and to make any appropriate order thereupon consonant with justice, equity and good conscience. In the result we overrule the preliminary objections and hold that the appeal is maintainable.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 5293 of 1993
Decided On: 23.03.2004
Bajranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.
Hon'ble Judges/Coram:
S. Rajendra Babu, B.N. Srikrishna and G.P. Mathur, JJ.
Citation: MANU/SC/0263/2004
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