Gultan vs Parmal and Another

J.V. Gupta, J.—This judgment will dispose of Regular Second Appeal Nos. 2113 and 2J14 of 1981 as both of them arise out of the same judgment of the learned Additional District Judge, Ambala, dated 19th/September, 1981.

Two pre-emption suits were filed with respect to the sale made by one Pitamber in favour of Nagina Ram. One suit was filed by Parmal son of Dalmir which was registered as Civil Suit No. 142 of June 12, 1979. The other suit was filed by Gultan Singh, Appellant, which was registered as Civil Suit No. 141 of June 12, 1979. Lateron, both the suits were consolidated by the trial Court and were disposed of by one judgment. By the said judgment, the suit filed by Parmal was dismissed whereas the suit filed by Gultan Appellant was decreed. Dissatisfied with the same, Parmal filed two separate appeals in the Court of the District Judge, Ambala. In both the appeals, the certified copy of the decree-sheet was the same which was prepared in suit No. 142 of June 12, 1979 i.e. Parmal v. Nagina. An objection to the maintainability of the appeal was taken before the lower Appellate Court However, it was of the opinion that it was not necessary for Parmal to prefer two appeals and, therefore, the mistake, if any, was of no consequence. Ultimately, the appeal was allowed and the decrees of the trial Court were set aside. Dissatisfied with the tame, the rival pre-emptor Gultan has filed these two appeals in this Court.

Since there was some dispute between the parties as two applications were filed by Parmal for obtaining the certified copies of the judgment and decrees in both the suits. Consequently vide this Court''s order dated 27th October, 1983 the District Judge, Ambala was directed to make a report as to what was the exact position. The learned District Judge, Ambala submitted his report dated 18th November, 1913. However, the said report'' did not resolve the controversy between the parties. As a result thereof vide this Court''s order dated 17th January, 1984 it was directed that both the applications No. 1076 and 1072 dated 6th December, 1980 filed by Parmal for obtaining the certified copies of the judgment and decree be sent to this Court. Incompliance with that order both the said applications have been received. From the perusal of the said applications it is quite evident that application No. 1070 dated 6th December, 1980 was filed by Parmal wherein he wanted the copy of the judgment and decree-sheet in'' the suit titled ''Parmal v. Nagina''. The other application No. 1072 dated 6th December, 1980 bears the thumb impression of Chilian, Appellant and thus It appears that it was filed by him to obtain the certified copy of the judgment in the suit titled ''Parmal v. Nagina''. However, on this application No. 1072 certified copy was received by Parmal. It is not clear as to how Parmal was given this certified copy on the application filed by Gultan. Anyhow no other application" was filed by Parmal to obtain the certified copy in the said suit titled ''Gultan v. Nagina'' registered as Civil Suit No. 141 of 12th June, 1980 Thus from the circumstances it is evident that Parmal never applied for the certified copy of the judgment and decree in the suit filed by Gultan which was registered as Civil Suit No. 141 of June 12, 1979. In the circumstances there was no appeal filed by Parmal, rival pre emptor, against the decree in the suit filed by Gultan whereby his suit was decreed. There being no appeal against the said decree in suit filed by Guhan, the same had become final between the parties and will operate as res judicata in view of the judgment of Supreme Court in Narhari v. Shanker 1. It was held therein that the question of res judicata arose only when there were two suits. In this view of the matter, the approach of the lower appellate Court in not entertaining the primary objection raised on behalf of the Appellant Gultan was wrong. The appeal filed by Parmal was liable to be dismissed on the ground that the same was net maintainable because the memorandum of appeal was not accompanied by the certified copy of the decree in suit No. 141 filed by Gultan. In Jagat Dhish Bhargava v. Jawahar Lal Bhargava 2, it was held that Order 41 Rule 1 CPC requiring'' that the certified copy of the decree should be filed alongwith the memorandum of appeal is mandatory and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.

The result of the above discussion is that both the appeals succeed, judgment and decree of the lower appellate Court are set aside and that of the trial Court are restored with costs. The Appellant is allowed to deposit the pre-emption money as found die by the trial Court, if not done earlier, on or before 1st May, 1984 failing which the appeal shall stand dismissed.