Saturday, 9 July 2022

Curable Procedural defects shall not defeat the substantive rights of the party

The contention of the appellant with vehemence is that the

application CLMA seeking permission to file joint appeal against

common judgment and two decrees has not been decided by the

impugned order, though at the time of admitting the appeal and

issuing notice, objections were called. In the counter-affidavit

filed by the respondent even before this Court, the said fact has

not been contested or refuted. In the order, it has also not been

mentioned that dismissal of the appeal would lead to decide all

pending applications including CLMA. As per record, it is clear

that the High Court admitted the appeal on 18.07.2008 and

CLMA was awaiting its fate for almost about a decade. By the

impugned order passed on 04.07.2018, first appeal was

dismissed accepting the preliminary objection regarding

maintainability applying the principle of res-judicata. There is not

even any without observation that permission as sought to file

one appeal cannot be granted. The record indicates that the

CLMA filed by the appellant seeking permission to file one appeal

was not decided. It is to observe, once at the time of admission of

first appeal, despite having objection of maintainability it was

admitted asking reply and rejoinder on CLMA, the High Court

ought to have decided the said application.

Thus, prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after

consolidation. In case, the High Court would have rejected the

said CLMA, the appellant could have availed the opportunity to

file separate appeal against the judgment and decree passed in

Civil Suit No.411 of 1989. Without deciding the CLMA and

accepting the preliminary objections, dismissing the appeal as

barred by res-judicata, primarily appears contrary to the spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on

dismissal of the CLMA, the appellant might have had the

opportunity to rectify the defect by way of filing separate appeal

under Section 96 of CPC challenging the same judgment with

separate decree passed in Civil Suit No.411 of 1989. Converse to

it, if this Court proceeds to consider the merit of the contentions

raised in the said CLMA and record the findings in negative, it

would effectively render the appellant remediless, therefore, we

refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be

allowed to defeat the substantive right accrued to the litigant

without affording reasonable opportunity. Therefore, in our

considered view, non-adjudication of the CLMA application, and

upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the

appellant. {Para 10}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4639 OF 2022

M/S RAMNATH EXPORTS PVT. LTD Vs VINITA MEHTA & ANR

Coram: J.K. Maheshwari, J.

Dated: July 05, 2022.

1. Leave granted.

2. This appeal arises out of the judgment dated 04.07.2018,

passed by High Court of Uttarakhand at Nainital in First Appeal

No.50 of 2008, preferred by appellant herein against the ‘common

judgment’ dated 16.04.2008 passed by Trial Court in Suit No.411

of 1989 (filed by respondents herein joining appellant as

defendant) and Suit No.419 of 1993 (filed by appellant herein

joining respondents as defendant). In Suit No.411 of 1989,

respondents sought ‘permanent injunction’ against appellant

restraining it from interfering in the right of use of concerned

passage or causing any interference or putting any obstruction in

the usage of the said passage and not to make any septic tank,

soakage pit or raise any other construction. The respondents also

prayed for grant of ‘mandatory injunction’ against the appellant,

making prayer to remove and demolish the walls on the

concerned passage and restoring the passage to its original width

of 13 ft. and filling up the ditch near the gate of plaintiff no.2

(respondent no.2 herein). In Suit No.419 of 1993, appellant

herein prayed for ‘permanent injunction’ restraining the

respondents/defendants from providing or creating any passage

through the property of appellant after demolishing the existing

passage. Since both the suits involved grievances pertaining to

the passage of the same land, therefore by consent order dated

18.08.2006 both were consolidated. The common issues were

framed by Trial Court to facilitate disposal of both suits by same

evidence. Consequently, the aforesaid consolidated suits were

disposed-off by the Trial Court by a common judgment dated

16.04.2008, though two separate decrees were drawn on

30.04.2008. The Suit No.411 of 1989 was partly decreed in

favour of plaintiff no. 2 (respondent no.2 herein), whereas Suit

No.419 of 1993 was dismissed.

3. Being aggrieved by the common judgment, appellant

preferred First Appeal No.50 of 2008 before the High Court

challenging both the decrees. On filing appeal, at the initial stage,

appellant also preferred an application being CLMA No.4365 of

2008 (in short be referred as “CLMA”) and sought permission to

file a single appeal assailing the common judgment dated

16.04.2008 alongwith two separate decrees dated 30.04.2008.

The first appeal was admitted by High Court vide order dated

18.07.2008 and by the same order, two weeks’ time was granted

to file objections on CLMA and further two weeks to file rejoinder.

It was further directed to list the application after lapse of the

said period.

4. The High Court without passing any order on the said

CLMA, at the time of hearing of the appeal, accepted the

preliminary objection regarding maintainability of single first

appeal without entering into the merits of the case. The Court

said that the case is restricted to the question of applicability of

principle of res-judicata and, taking into consideration the

material placed and the contentions raised by both the parties,

the appeal was dismissed holding that one appeal is not

maintainable and barred by res-judicata. In the impugned order,

the High Court has considered the full bench judgment of

Allahabad High Court in the case of Zaharia Vs. Dibia & Ors.,

ALR (1910) Allahabad 51, and also the case of Narhari & Ors.

Vs. Shanker & Ors., AIR 1953 SC 419, in which full bench

judgment of Lahore High Court passed in case of Mt. Lachhmi

Vs. Mt. Bhulli, AIR 1927 Lahore 289 was relied. The Court

distinguished the full bench judgment of Mt. Lachhmi (supra) of

Lahore High Court and also the judgment of this Court in the

case of Narhari (supra) and placing reliance upon the judgment

of Lonankutty Vs. Thomman & Anr., (1976) 3 SCC 528, said

that the case in hand is similar to the case of Lonankutty

(supra) which was dismissed on the ground of res-judicata alone.

The High Court further relied upon the judgment of this Court in

Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal

& Ors., (2015) 3 SCC 624, wherein, this Court while dealing


with the concept of res-judicata discussed law on the point of

applicability of res-judicata and observed that losing party must

file appeals in respect of all adverse decree founded even on

partially adverse or contrary speaking judgments.

5. In impugned order, the Court held that separate appeals

ought to have been filed by appellant against the decree given in

Suit No.411 of 1989 as well as in Suit No.419 of 1993. Failure to

file separate appeals would invite the applicability of principle of

res-judicata. The Court in the order concluded that one appeal

against both the decrees is not tenable in terms of clear

stipulation as per Section 96 of CPC. As separate appeals have

not been filed against both the decrees, res-judicata would

operate as against the findings given in another suit even after

consolidation. Thus, held that, the cause of appellant is

foreclosed by applicability of principle of res-judicata.

6. Being aggrieved, the appellant preferred instant appeal and

learned counsel present has contested the same on following

grounds –

a) The appellant had assailed the findings recorded by Trial

Court by mentioning both the suit numbers alongwith

payment of requisite court fee for the purpose of valuation on

the basis of consolidated value of suits;

b) The first appeal was admitted by High Court vide order dated

18.07.2008, but the same was dismissed after a decade

without entering into the merits of the case;

c) While admitting the appeal, notice was issued on CLMA, i.e.,

application to seek permission to file single appeal impugning

the common judgment and two decrees, but without deciding

the said application, the preliminary objections raised by the

respondents has been maintained causing serious prejudice

to it;

d) The essence of rule of res-judicata is that the two

proceedings should be so independent of each other that the

trial of one cannot be confused with trial of other suit, but

where two suits having common issue were tried together

and disposed-off vide single judgment, can they be said to be

two distinct and independent trials;


e) In effect, only one judgment was passed in the trial and suits

were not clubbed but were consolidated for all purposes;

f) In support of the said contentions learned counsel would rely

upon –

i. State of Andra Pradesh & Ors. Vs. B. Ranga Reddy

(thru LR’s) & Ors., (2020) 15 SCC 681;

ii. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi

Ammal & Ors., (2015) 3 SCC 624;

7. Per contra, the counsel for the respondents has argued in

support of the findings recorded in the impugned judgment and

made the following submissions –

a. The appellant unilaterally preferred single appeal and paid

the Court fee on the basis of consolidated value of suits,

whereas, separate Court fee was to be calculated on each

decree and affixed accordingly;

b. Appeal against decree in Civil Suit No.411 of 1989 can be

filed before District Judge, having a limitation of 30 days as

per Section 8 of Suits Valuation Act, 1887, whereas, looking

to the valuation, appeal against decree in Civil Suit No.419 of

1993 lies before High Court having a limitation of 90 days.


No such appeal against decree in Civil Suit No.411 of 1989

before District judge was preferred by appellant;

c. The judgment and decree passed in Civil Suit No.411 of 1989

has attained finality inter-se parties since it was not

challenged within the prescribed period of limitation;

d. Consolidation of suits was done only for evidence and it does

not mean that one appeal can be preferred since suits still

retain their separate identity. Even assuming that the

consolidation was for all purposes, yet the procedure for

preferring an appeal cannot be waived or by-passed;

e. Since the day of notice in first appeal, objection has been

raised for filing only one appeal and still the said defect was

not rectified by the appellant;

f. Learned counsel placed reliance on following judgments to

substantiate the submissions –

i. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi

Ammal & Ors., (2015) 3 SCC 624;

ii. V. Natarajan Vs. SKS Ispat & Power Ltd. & Ors., Civil

Appeal No.3327 of 2020)

iii. B. Santoshamma & Anr. Vs. D. Sarla & Anr., 2020

SCC OnLine SC 756;


8. After having heard learned counsel for parties and on

perusal of the material available, we have read the provision of

Section 96 of CPC, which provides for filing of an appeal from the

decree by any Court exercising original jurisdiction to the Court

authorized to hear appeals from the decisions of such Courts. It

is also settled that an appeal is a continuation of the proceedings

of the original court. Ordinarily, in the first appeal, the appellate

jurisdiction involves a re-hearing on law as well as on fact as

invoked by an aggrieved person. The first appeal is a valuable

right of the appellant and therein all questions of fact and law are

open for consideration by re-appreciating the material and

evidence. Therefore, the first appellate court is required to

address on all the issues and decide the appeal assigning valid

reasons either in support or against by re-appraisal. The court of

first appeal must record its findings dealing all the issues,

considering oral as well as documentary evidence led by the

parties.

9. In the instant case, it is not disputed that appellant herein

filed CLMA, i.e., application seeking permission to file single

appeal against the common judgment as well as the two separate

decrees passed in consolidated suits. Further, as is evident from

the record, especially from the order dated 18.07.2008, the High

Court at the time of admission of the appeal specifically directed

that CLMA be listed for disposal after expiry of four weeks’ time

given to both parties to file counter as well as rejoinder affidavits.

The relevant portion of the said order is reproduced for ready

reference as under –

“…….Learned Counsel for the respondent wants to file objection

against CLMA No.4365/2008. Two weeks’ time is given to file

objection/counter affidavit. Thereafter two weeks’ time is given

to file rejoinder by the appellant. List this application for disposal

after the expiry of aforesaid period…….”

10. The contention of the appellant with vehemence is that the

application CLMA seeking permission to file joint appeal against

common judgment and two decrees has not been decided by the

impugned order, though at the time of admitting the appeal and

issuing notice, objections were called. In the counter-affidavit

filed by the respondent even before this Court, the said fact has

not been contested or refuted. In the order, it has also not been

mentioned that dismissal of the appeal would lead to decide all

pending applications including CLMA. As per record, it is clear

that the High Court admitted the appeal on 18.07.2008 and

CLMA was awaiting its fate for almost about a decade. By the

impugned order passed on 04.07.2018, first appeal was

dismissed accepting the preliminary objection regarding

maintainability applying the principle of res-judicata. There is not

even any without observation that permission as sought to file

one appeal cannot be granted. The record indicates that the

CLMA filed by the appellant seeking permission to file one appeal

was not decided. It is to observe, once at the time of admission of

first appeal, despite having objection of maintainability it was

admitted asking reply and rejoinder on CLMA, the High Court

ought to have decided the said application.

Thus, prior to deciding the preliminary objection, the High Court

should have decided the said CLMA, either granting leave to file a

single appeal or refusing to entertain one appeal against one

judgment and two decrees passed in two suits after

consolidation. In case, the High Court would have rejected the

said CLMA, the appellant could have availed the opportunity to

file separate appeal against the judgment and decree passed in

Civil Suit No.411 of 1989. Without deciding the CLMA and

accepting the preliminary objections, dismissing the appeal as

barred by res-judicata, primarily appears contrary to the spirit of

its own order dated 18.07.2008. In our considered view also, the

approach adopted by High Court is not correct, because on

dismissal of the CLMA, the appellant might have had the

opportunity to rectify the defect by way of filing separate appeal

under Section 96 of CPC challenging the same judgment with

separate decree passed in Civil Suit No.411 of 1989. Converse to

it, if this Court proceeds to consider the merit of the contentions

raised in the said CLMA and record the findings in negative, it

would effectively render the appellant remediless, therefore, we

refrain ourselves from examining the merits of CLMA. It is a trite

law that the procedural defect may fall within the purview of

irregularity and capable of being cured, but it should not be

allowed to defeat the substantive right accrued to the litigant

without affording reasonable opportunity. Therefore, in our

considered view, non-adjudication of the CLMA application, and

upholding the preliminary objection of non-maintainability of one

appeal by High Court has caused serious prejudice to the

appellant.

11. In view of the foregoing, this Court is not expressing any

opinion regarding correctness of the findings on the applicability

of res-judicata, except to observe that those findings as arrived in

the impugned order would not sustain because of not deciding

the application CLMA filed by appellant seeking permission to file

one appeal against a common judgment passed in a consolidated

suit with two separate decrees. Therefore, in the light of the

preceding discussion, approach adopted by the High Court in

dismissing the admitted first appeal after a lapse of decade

without deciding the CLMA has effectively deprived the appellant

of its right to take its recourse by rectifying the defect and to be

heard on merits.

12. Resultantly, we allow this appeal and remand the matter to

the High Court with a request to decide the CLMA

No.4365/2008, prior to deciding the preliminary objection of

maintainability of one appeal. No costs.

………..………………...J.

(INDIRA BANERJEE)

.….………………………J.

(J.K. MAHESHWARI)

New Delhi;

July 05, 2022.


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