2022 (7) TMI 1594 - SC - Indian Laws

Seeking 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 - HELD THAT - On reading 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. 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 - 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. 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. The matter remanded 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 - appeal allowed by way of remand.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether a single first appeal is maintainable against a common judgment and two separate decrees passed in consolidated suits involving distinct causes of action.

- Whether the principle of res judicata bars the appellant from filing a single appeal against two separate decrees arising from consolidated suits.

- Whether the High Court erred in dismissing the first appeal on the ground of non-maintainability without deciding the application (CLMA) filed by the appellant seeking permission to file a single appeal.

- The procedural requirements under Section 96 of the Code of Civil Procedure (CPC) regarding filing appeals against separate decrees.

- The effect of consolidation of suits for trial and disposal on the identity of suits and the procedure for filing appeals.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Maintainability of Single Appeal Against Common Judgment and Two Separate Decrees Passed in Consolidated Suits

Relevant Legal Framework and Precedents: Section 96 of CPC mandates that an appeal lies from a decree passed by a court exercising original jurisdiction to the court authorized to hear such appeals. The principle of res judicata as discussed in precedents such as Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors. (2015) 3 SCC 624 and Lonankutty Vs. Thomman & Anr. (1976) 3 SCC 528 emphasize that appeals must be filed against all adverse decrees to avoid multiplicity of litigation. The Full Bench judgments of Allahabad High Court in Zaharia Vs. Dibia & Ors. and the Lahore High Court in Mt. Lachhmi Vs. Mt. Bhulli have been considered to distinguish the applicability of res judicata in the context of consolidated suits.

Court's Interpretation and Reasoning: The High Court held that separate appeals ought to have been filed against each decree arising from the two suits, despite consolidation. It reasoned that consolidation for trial does not merge the suits into one; they retain their separate identities and distinct decrees. The Court relied on the principle that failure to file separate appeals results in the application of res judicata, barring the appellant from challenging the decrees in a single appeal. The Court distinguished precedents where suits were independent and held that the present case was akin to Lonankutty (supra), where the appeal was dismissed on grounds of res judicata.

Key Evidence and Findings: The suits involved distinct claims: Suit No.411 of 1989 sought permanent and mandatory injunctions restraining interference with a passage, whereas Suit No.419 of 1993 sought permanent injunction restraining creation of a new passage. Both suits were consolidated for trial but separate decrees were drawn. The appellant filed a single appeal challenging both decrees, paying court fees on consolidated valuation.

Application of Law to Facts: The Court applied the principle that consolidation for trial does not affect the procedural requirement of filing separate appeals against separate decrees. Hence, the single appeal was held to be not maintainable.

Treatment of Competing Arguments: The appellant contended that since a common judgment was passed after consolidation, a single appeal should be maintainable, relying on precedents such as State of Andhra Pradesh & Ors. Vs. B. Ranga Reddy & Ors. and Sri Gangai Vinayagar Temple (supra). The respondents argued that suits retained separate identities and limitation periods differed, making separate appeals mandatory. The Court sided with respondents, emphasizing procedural compliance.

Conclusions: The High Court concluded that the single appeal was barred by res judicata and non-maintainable under Section 96 CPC.

Issue 2: Non-Decision of CLMA Application Seeking Permission to File Single Appeal

Relevant Legal Framework and Precedents: The procedural law requires that applications seeking leave or permission to file appeals must be adjudicated before dismissing appeals on maintainability grounds. The principle that procedural irregularities should not defeat substantive rights is well settled.

Court's Interpretation and Reasoning: The Supreme Court observed that the High Court admitted the appeal and directed the parties to file objections and rejoinders on the CLMA application seeking permission to file a single appeal but did not decide the application. Instead, the High Court dismissed the appeal on preliminary objection of maintainability invoking res judicata without deciding the CLMA. This was held to be contrary to the spirit of the order admitting the appeal and was prejudicial to the appellant's rights.

Key Evidence and Findings: The order dated 18.07.2008 from the High Court explicitly provided timelines for filing objections and rejoinders on the CLMA and directed listing for disposal thereafter. The CLMA remained undecided for about a decade. The respondents did not contest this fact before the Supreme Court.

Application of Law to Facts: The Court held that the High Court ought to have decided the CLMA before considering the maintainability objection. Had the CLMA been rejected, the appellant could have filed separate appeals, curing the defect. The failure to decide the CLMA deprived the appellant of this opportunity and caused serious prejudice.

Treatment of Competing Arguments: The appellant argued that non-decision of CLMA was fatal and deprived it of the right to be heard on merits. Respondents argued that the appeal was barred on procedural grounds and limitation. The Supreme Court favored the appellant's position emphasizing procedural fairness.

Conclusions: The Supreme Court held that dismissal of the appeal without deciding the CLMA was erroneous and caused prejudice, warranting remand for decision on CLMA before deciding maintainability.

Issue 3: Effect of Consolidation of Suits on Filing of Appeals

Relevant Legal Framework and Precedents: Consolidation of suits under procedural law is for the purpose of trial and evidence to avoid multiplicity and conflicting judgments but does not merge the suits into one. Separate suits retain their distinct identities and decrees. Precedents including Sri Gangai Vinayagar Temple (supra) and Lonankutty (supra) clarify that consolidation does not affect the procedural requirement of filing separate appeals.

Court's Interpretation and Reasoning: The Court observed that consolidation was for trial purposes only and did not merge the suits or their decrees. Therefore, the procedural requirement to file separate appeals against separate decrees remains intact. The Court also noted that different limitation periods and forum jurisdictions applied to the respective suits, reinforcing their distinct identities.

Key Evidence and Findings: The suits had different filing dates (1989 and 1993), different causes of action, and separate decrees. The consolidation order was by consent for trial convenience.

Application of Law to Facts: The Court applied the settled principle that consolidation does not merge suits for all purposes and procedural requirements for appeals must be followed accordingly.

Treatment of Competing Arguments: The appellant argued that since a single judgment was passed, a single appeal should be maintainable. The Court rejected this, holding that consolidation does not affect the procedural rights of parties to file separate appeals.

Conclusions: The Court upheld the principle that consolidation for trial does not dispense with filing separate appeals against separate decrees.

3. SIGNIFICANT HOLDINGS

- "The High Court ought to have decided the said application 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."

- "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."

- "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."

- "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 cause of appellant is foreclosed by applicability of principle of res judicata."

- The Court emphasized that "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."

- The appeal was allowed and the matter remanded to the High Court with a direction to decide the CLMA application prior to deciding the preliminary objection on maintainability.