M/s Ramnath Exports Pvt. Limited @APPELLANT@Hash Vinita Mehta & Another

Sudhanshu Dhulia, J

This first appeal before this Court is against a common judgment given by the trial court in Suit No. 411/1989 and 419/1993, by consolidating the two

cases and by framing common issues in the two and then deciding them by a common judgment. There are two separate decrees though. The suit

which was filed earlier is Suit No. 411/1989 which was filed by Smt. Vinita Mehta (respondent no. 1 herein) in which the present appellant was the

defendant. Suit No. 419/1993 was filed by the present appellant in which the present respondents were the defendants. Both the suits were filed

seeking a relief of injunction. In Suit No. 411/1989, plaintiff claimed right over the passage and sought injunction against the defendants. Similarly, the

present appellant being plaintiff in Suit No. 419/1993 claimed ownership on the passage and on that basis claimed injunction against the present

opposite parties. Whereas Suit No. 411/1989 was decreed Suit No. 419/1993 was dismissed.

As stated in the beginning a single appeal being the First Appeal No. 50/2008 has been filed before this Court against the two decrees. When this

appeal was filed before this Court in the year 2008, a preliminary objection was raised and filed in writing by the present respondents (which is on

record since 13.8.2008), stating that this appeal is liable to be dismissed on the ground of res judicata as this appeal can be treated to be an appeal only

against one decree, and against the another decree the findings given by the trial court have attained a finality. The finding being common and the

decree in Suit No. 411 of 1989 having attained a finality it will operate as res judicata.

After hearing learned Counsel for the parties on this aspect, I am of the opinion that the issue which must be decided first is whether there is any

application of the principle of res judicata in the present case. In case the principle of res judicata is applicable in this case, then the appeal would be

liable to be dismissed on that ground alone.

Rival contentions have been raised before this Court on the non-application of the principle of res judicata on the one hand (at the hands of the

present appellant) and the application of principle of res judicata by the Counsel for the other side. Justice Tek Chand* has traced the origin of the

principle of res judicata to ancient jural societies and it is based

(*Lachhmi v. Bhulli, AIR 1927 Lahore 289)

on the concept which postulates that justice requires every matter to be tried fairly, but once it has been tried, all litigations about it should be

concluded forever between the parties. It attains a finality between the two and it is not liable to be re-agitated. Justice Tek Chand remarks “This

rule, which treats the final decision of a competent tribunal as “irrefragable truthâ€, was well understood by Hindu lawyers as well as by

Mahomedan jurists, and is one of the greatest gifts of Roman jurisprudence to the modern jural systems of Europe.â€​

The principle of res judicata was known in ancient India as a concept of “Prang Nyaya†(former decision). Among Mohammedan law makers,

the same concept was known as “Niza-i-munfasla†or “Amar Mania taqrir mukhalifâ€. Under the colonial rule in British India the rule of res

judicata, as noticed by Justice Tek Chand, seems to have been first introduced by Section 16 of the Bengal Regulation III of 1973, which prohibited

the Zilla and City Courts “from entertaining any cause, which, from the production of a former decree or the record of the Court, shall appear to

have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction.â€​

Therefore, when we examine the concept of res judicata, it is not to be examined merely on the narrow confines of Section 11 of the Code of Civil

Procedure, 1908 (from hereinafter referred to as the ‘CPC’). In any case, Section 11 CPC has important bearing and must be examined.

Section 11 CPC reads as under:

“11. Res judicata.â€"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.

Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal

from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or

impliedly, by the other.

Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been

a matter directly and substantially in issue in such suit.

Explanation V. -Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have

been refused.

Explanation VI. -Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all

persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII.-The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue

or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree; question arising in such proceeding and a

former proceeding for the execution of that decree.

Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in

a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue

has been subsequently raised.â€​

Objection of the opposite party before this Court is that this appeal has been filed against the decree in Suit no. 419/1993 where the appellant’s

suit was dismissed. Section 96 CPC clearly stipulates that an appeal lies against a decree and since only one appeal has been filed, this appeal can

never be treated to be an appeal against the decree given by the court below in another suit i.e. Suit No. 411/1989 and therefore the findings given in

Suit No. 411/1989 having attained finality against which no appeal has been filed these findings will operate as res judicata. Even assuming that this

appeal has been filed against the decree given by the court below in Suit No. 411/1989, and not in Suit No. 419/1993, the findings given in Suit No.

419/1993 will then operate as res judicata against the present appeal. This has never be the case of the appellant that he has filed appeal against both

the decrees given by the court below i.e. decree given in Suit No. 411/1989 as well as decree given in Suit No. 419/1993 as in that case two appeals

ought to have been filed. Moreover, this has always been the objection of the opposite party before this Court, which is on record since August 2008,

and yet no appeal has been filed against the other decree. Therefore, it has been additionally argued that the filing of the present appeal is not merely a

procedural lapse or negligence, but a deliberate act on the part of the appellant who did not rectify or made amendment in the case by filing another

appeal.

In order to substantiate his argument that this appeal is barred by res judicata, learned Counsel for the opposite party relied upon various judgments

of different High Courts as well as on the judgment of the Hon’ble Apex Court. First judgment relied upon is of the Full Bench of Allahabad High

Court rendered in the case of Zaharia v. Dibia & Others, ALR (1910) Allahabad 51, passed in second appeal where two suits between the same

parties involving common issues were consolidated and one judgment was passed, but only one appeal was preferred and it was held by the Allahabad

High Court that principle of res judicata was operating.

Learned Counsel of the appellant on the other hand too has relied upon judgments of different High Courts including the judgment rendered in

Narhari & Others v. Shanker & Others, AIR 1953 SC 419 (Vo. 40, C.N. 93), by the Hon’ble Apex Court wherein it has been said that in such

cases res judicata will not operate. The main judgment relied upon by the learned Counsel for the appellant has been rendered by the Full Bench of

Lahore High Court in Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lahore 289 .

As far as the judgments relied upon by the learned Counsel for the appellant are concerned, particularly the judgment of Lahore High Court, these

judgments are based on a conception that in a case where two suits are consolidated and one judgment is given and one appeal can be filed and

principle of res judicata will not be attracted since there is nothing here like a “former suitâ€. The suits have been consolidated and tried together.

The findings therefore are common which are given in a common judgment. Therefore, any former or previous judgment acting as res judicata will not

operate in such a case.

All the same, an entirely different and opposite view has been taken on the same set of facts by the different High Courts including that of

Allahabad High Court, reference of which has earlier been given. Narhari case of 1953 relied upon by the appellant has entirely different set of facts.

In the said case, only one suit was filed for possession of two-thirds of the land covered by Survey No. 214 and for mesne profits. There was more

than one defendant in the said suit. The trial court decreed the suit. From the decree, two separate appeals were taken to the appellate stage by two

sets of defendants. The appeals were filed in Sadar Adalat, Gulbarga where each set of appellants claimed one-third portion of the land and each paid

the court fee to the extent of their share. First Appellate Court i.e. Sadar Adalat, Gulbarga allowed both the appeals and dismissed the plaintiff’s

suit by one judgment and ordered that the copy of the judgment be placed on the file of another connected appeal. Against this judgment, plaintiff

preferred two appeals before the High Court out of which one appeal was beyond the period of limitation. A preliminary objection raised before the

High Court was that as the other appeal filed was beyond the period of limitation, it cannot be maintained and therefore it is liable to be dismissed and

once it is dismissed, the principle of res judicata will apply to the first appeal as well. The High Court was of the opinion that the plaintiff should have

filed two separate appeal within the period of limitation and as the other appeal was time barred, the principle of res judicata will apply against the first

appeal also and dismissed both the appeal. Against this judgment of High Court, two appeals were filed before the Judicial Committee of the State

which stood transferred to the Federal Court (which by that time had come into existence) and during the pendency, these appeals were ultimately

transferred from the Federal Court to the Supreme Court in terms of Clause (4) of Article 374 of the Constitution of India. While deciding the appeals,

following observation was made by the Hon’ble Supreme Court:

“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 appealed against with a different number or a copy of it was attached to a

different appeal. The two decrees in substance 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.â€​

Undoubtedly, the Hon’ble Apex Court also relied upon the judgment of Justice Tek Chand and the Full Bench judgment of Lahore High Court,

which have already been referred above, but as we have noticed the facts before the Hon’ble Apex Court in case of Narhari were entirely

different. The fundamental difference in the said case, unlike the case in hand, is that only one suit was filed by the plaintiff and it is not a case where

two suits were filed and consolidated and decided by a common judgment. At the appellate stage, two decrees were drawn. This aspect has been

considered in a later judgment of Hon’ble Apex Court in the case of Lonankutty v. Thomman & Another, (1976) 3 SCC 528, where a three-

Judges Bench while holding that in such matters the principles of res judicata will apply has distinguished the case of Narhari. In paragraph 21 of the

judgment, the Hon’ble Apex Court has observed as under:

“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. Shanker. 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 timebarred, 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, here 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's case was

distinguished by this Court in Sheodan Singh v. Smt. Daryao Kunwar (AIR 1966 SC 1332). 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.â€​

The case of Lonankutty where in similar circumstances the appeal was allowed by the High Court, the Hon’ble Apex Court observed that the

High Court, in fact, erred in allowing the respondent’s appeal as the appeal was liable to be dismissed on the ground of res judicata alone.

More recently, in order to set all controversies at rest, a three-Judges Bench of Hon’ble Apex Court in case of Sri Gangai Vinayagar Temple

& Another v. Meenakshi Ammal & Others, (2015) 3 SCC 624, has categorically held that no matter how harsh the principle of res judicata may

appear, but in order that justice must prevail this principle must be made applicable. Paragraph 27 of the judgment reads as under:

“Procedural norms, technicalities and processual 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 v. Jaypee Rewa Cement. 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 the 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 O.S. No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so

much judicial time, would not have arisen at all.â€​

Hon’ble Apex Court while deciding the concept has taken into consideration the entire laws including the earlier pronouncements on the

principle of res judicata.

In view of the above position in law, I am of the opinion that an appeal ought to have been filed against the decree given in Suit No. 411/1989 as

well. In the event it has not been filed, it must invite the application of the principle of res judicata. Observations of Hon’ble Supreme Court made

in case of Sri Gangai Vinayagar Temple & Another v. Meenakshi Ammal & Others must be reiterated here:

“The raison d'etre and public policy on which res judicata is predicated is that the party who has raised any aspect in a litigation and has had an

Issue cast thereon, has lead evidence in that regard, and has argued on the point, remains bound by the curial conclusions once they attain finality. No

party must be vexed twice for the same cause; it is in the interest of the State that there should be an end to litigation; a judicial decision must be

accepted as correct in the absence of a challenge. The aspect of law which now remains to be considered is whether filing of an Appeal against a

common judgment in one case, tantamounts to filing an appeal in all the matters.

The application of res judicata, so very often, conjures up controversies, as is evident from the fact that even in this Court divergent opinions were

expressed by the two Judge Bench, leading to the necessity of referring the appeal to a Larger Bench. It was for this reason that we thought it

appropriate to deal with the dispute in detail. It seems to us that had the decisions of the three Judge Bench in Lonakutty and Prabhu been brought to

the attention of our Learned and Esteemed Brothers on the earlier occasion when this appeal was heard by two Judge Bench, the dichotomy in

opinion would not have arisen. The outcome of the appeal before the High Court would have also shared a similar fate. On the foregoing analysis,

especially the previous enunciation of law by three Co-ordinate Benches, we are in agreement with the opinion of our Learned Brother Asok Kumar

Ganguly that the appeal calls to be allowed.

We are of the opinion that having failed or neglected or conceitedly avoided filing appeals against the decrees in O.S. No. 5 of 1978 and O.S. No. 7 of

1978, the cause of the Respondents/Tenants was permanently sealed and foreclosed since res judicata applied against them.â€​

The case of the appellant that actually he filed the present appeal against both the decrees is not tenable as Section 96 CPC clearly stipulates that

there shall be one appeal against one decree. Either way, res judicata will operate and, therefore, the findings having become final against the

appellant, which have not been challenged before this Court in a separate appeal the cause of the appellant is foreclosed by application of the principle

of res judicata. The appeal is thus stands dismissed.