TaxTMI 
TaxTMI 
2022 (7) TMI 1594
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....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 (....
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....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-udicata. 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 c....
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....shy;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-udicata. 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 ....
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....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....
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....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 - ....
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....intainability 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 spir....