Maintainability of a single appeal must await decision on leave to file it; curable defects cannot defeat appellate rights.

A pending application seeking permission to file a single appeal against a common judgment and two decrees had to be decided before the appeal was rejected on maintainability. The court held that a first appeal is a continuation of the original proceedings, and a technical defect in the form of appeal should not defeat the substantive right of appeal without giving an opportunity to cure it by filing separate appeals if necessary. Dismissing the admitted appeal on a preliminary objection, while leaving the permission application undecided, was therefore unsustainable. The matter was remitted for decision of the pending application before the maintainability objection could be considered.

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Issues: Whether the High Court was justified in dismissing the first appeal as not maintainable on the ground that a single appeal had been filed against a common judgment and two separate decrees, without first deciding the application seeking permission to file such single appeal.

Analysis: The first appeal is a continuation of the original proceedings and, ordinarily, the appellate court must decide the appeal on law and facts after considering the record. Here, the appellant had filed an application seeking leave to file a single appeal against the common judgment and the two decrees arising from consolidated suits. That application was kept pending, although notice had been issued and objections had been invited. The High Court nevertheless accepted the preliminary objection of maintainability and dismissed the admitted appeal on the basis of res judicata, without first deciding whether a single appeal could be entertained. Such non-adjudication of the pending application deprived the appellant of an to rectify any defect by filing separate appeals if necessary. A procedural defect should not be allowed to defeat the substantive right of appeal without affording a reasonable opportunity.

Conclusion: The dismissal of the appeal on maintainability was not sustainable because the pending application seeking permission to file a single appeal was not decided first. The matter had to be considered by deciding that application before ruling on the preliminary objection.

Final Conclusion: The appellant succeeded, and the matter was remitted to the High Court for decision of the pending application before consideration of the maintainability objection.

Ratio Decidendi: A court should decide a pending application seeking permission to file a particular form of appeal before dismissing the appeal on a technical objection of maintainability, and a curable procedural defect cannot be permitted to defeat the substantive right of appeal without affording an opportunity to rectify it.

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