TaxTMI 
TaxTMI 
2026 (9) TMI 1748
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2. The predecessor of the appellants [For short, 'the plaintiff'] filed two suits, one for declaration that a registered sale deed executed by one defendant in favour of another was null and void. The other suit was for perpetual injunction seeking to restrain the defendants from interfering with the joint possession of the plaintiff. Both the suits were clubbed together and a common trial was held. The parties thereafter led evidence and by a common judgment dated 07.12.1990, both the suits were dismissed. The plaintiff filed a composite appeal under Section 96 of the Code raising a challenge to the common judgment rendered in both the suits. Along with the appeal, certified copies of the judgment as well as the decrees passed in both the suits were filed. Court fees payable on two separate appeals were also paid along with the memorandum of appeal. It was prayed that the common judgment of the trial Court dismissing both the suits be set aside and the appeal be allowed. The appellate Court by its judgment dated 17.08.2007 allowed the said appeal and decreed both the suits. Two second appeals filed by the defendants were allowed by the High Court of Karnataka [For short, 'the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... A singular appeal filed in such circumstances was rightly held to be not maintainable by the High Court. The law in this regard was rightly followed by the High Court in the impugned judgment. It, therefore, could not be said that any error was committed by the High Court when it held that a singular appeal in such circumstances was not tenable. He referred to the decisions in M/s S.A.L. Steel Limited Vs. M/s Sreenidhi Trading Company and others- R.F.A. No.100242 of 2017 decided on 20.05.2024 and Sri Dinesh Poojary Vs. Sri Venkappa Gowda- R.S.A. No.2011 of 2016 decided on 03.03.2025 wherein similar issues were considered. He further submitted that the view taken in Mallana alias Appaiah (supra) was the correct view. He, thus, submitted that there was no merit in the present appeals and the same were liable to be dismissed. 5. Having given due consideration to the rival submissions, the relevant provisions of the Code and material factual aspects obtaining from the record, we are of the considered view that the composite appeal preferred for challenging the common judgment of the trial Court deciding two suits filed by the same plaintiff was rightly entertained on merits. The ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ference was made to the fact it was a composite appeal laying challenge to the common judgment of the trial Court. Paragraphs 2 and 3 of the memorandum of appeal read as under: "2. This appeal is directed against the Judgment and Decrees passed in 0.S.No. 14/86 and 135/87 of the Munisifff at Shahapur, dated. 7-12-1990 whereunder both the suits instituted by the present appellant for appropriate reliefs. to which he was lawfully entitled, which he claimed, came to be dismissed, for the reasons stated in the Judgment, which is passed in common, in both the above referred suits, which were clubbed by the Trial Court and tried together. 3. The certified copy of the Judgment and decrees in both the suits are filed herewith claiming dispensation a copy of Judgment from Hon'ble court. u/o 41 rule 1 CPC." [emphasis supplied by us] The plaintiff valued the appeal by calculating the court fees payable for challenging both the decrees. In paragraph 5 of the memorandum of appeal, it was stated as under: "5. (a) The Valuation of the reliefs as made in the Trial court of the subject matter of dispute in O.S. No. 14 of 1986 was at Rs. 1000/- u/s 24 (d) and pai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....State Agro Corn Products Ltd. (supra) held that a singular appeal under Section 96 of the Code by the plaintiff raising a challenge to the common judgment in two suits was not tenable and the first appellate Court ought not to have entertained a single appeal. On that reasoning, both the second appeals were allowed and the judgment of the first appellate Court was set aside. This adjudication is the subject matter of challenge in these civil appeals. 10. From the aforesaid factual matrix, the undisputed position that emerges is as follows: a) The plaintiff in both the suits was the same. b) While one defendant was common in both the suits, one suit had an additional defendant. c) At the request of the common defendant in both the suits, the proceedings in both the suits were clubbed together. As a result, common evidence was led in both the suits. d) Though the plaintiff preferred a composite appeal challenging the dismissal of both the suits through a common judgment, the court fees payable on separate appeals raising challenge to the common judgment of the trial Court were paid. A specific prayer seeking setting aside of the common judgment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wo or more suits are tried together and a common judgment is delivered. The object behind the said provision, as noticed in P.A. Oommen Vs. Moran Mar Baselius Marthoma- 1992 INSC 175, is to avoid extra expenses where more cases than one are disposed of by a common judgment by empowering the appellate Court to dispense with the necessity of filing more than one copy of the judgment. Such request for dispensing with filing of an additional copy of the judgment of the trial Court was also made by the plaintiff. Significantly, the requisite court fees payable for challenging the common judgment and decrees in both suits was also paid by the plaintiff. The prayer made in the memorandum of appeal was clear seeking setting aside of the common judgment in both the suits. The composite appeal was filed along with certified copies of the common judgment and decrees passed in both suits. It can, thus, be seen that all necessary requisites for challenging the common judgment of the trial Court were satisfied by the unsuccessful plaintiff. The requirements of Order XLI Rule 1 (1) and (2) of the Code were fully complied with and the composite appeal as filed was complete in all respects. All ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....site appeal at the behest of an aggrieved party, the test of res judicata would also be crucial. Various situations in which the bar of res judicata would apply are contemplated by Section 11 of the Code. It is material to note that res judicata would apply only qua a judgment and not a decree. We may with advantage refer to the judgment of the Nagpur High Court in Manohar Vinayak and others Vs. Laxman Anandrao Deshmukh and others- AIR 1947 Nagpur 248 wherein it was held as under: "29. In order that a decision should operate as res judicata it should be quite independent of the proceedings to which it is pleaded as a bar. The principle of res judicata cannot apply in the same proceeding in which the decision is given and by parity of reasoning it cannot apply to the consolidated proceedings. When by consent of parties or by an order of the Court the two suits are consolidated they have no independent existence and nothing decided in one of the two consolidated suits can operate as res judicata if that decision was appealed against. This is because there are no two independent decisions." This position has been further explained in Narhari and others Vs. Shankar and othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hout there being any adjudication of either of his suits on merits. The deficiency in the composite appeal preferred by the plaintiff under Section 96 of the Code was more in its 'form' than 'substance'. Hence, an opportunity ought to have been granted to the plaintiff to cure the deficiency which merely required presentation of an additional memorandum of appeal. This requirement is purely procedural in nature and the plaintiff cannot be made to suffer for such deficiency, if it could be called so. It must be borne in mind that the right of appeal is a substantive right of a party who cannot be deprived of the same merely for procedural defects. The attempt of Courts should always be to adjudicate the case on merits rather than to put an end to the proceedings for failure to comply with procedural requirements. 'Form' should not be permitted to prevail over 'substance'. The rules of procedure enumerated in the Code are treated as the handmaid of justice and are not to be utilised as a sword to curtail the proceedings. On the question of granting an opportunity to a party to cure a procedural deficiency, we may refer to the observations made in paragraph 7 of the decision in Charan....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court passed in his suit, the first appellate Court could not have interfered in the single appeal preferred by B challenging the judgment and decree passed in the suit filed by A. The aforesaid facts indicate that the plaintiff in one suit was the defendant in the other suit filed by the defendant. For this reason, no support of this decision can be taken by the respondents inasmuch as in the present case, both the suits were filed by one and the same plaintiff. 18. In M/s S.A.L. Steel Limited (supra), suit was filed by A for recovery of money against B while B filed a counter-claim against A. While the suit filed by A was decreed, the counter-claim filed by B was dismissed. The question as to maintainability of a single appeal against the decree passed in the suit as well as the counterclaim was raised. Reliance was placed on the decision of the Himachal High Court in Ramesh Chand Vs. Om Raj and others- R.S.A. No.57 of 2017 decided on 17.05.2022. However, during the course of hearing, the prayer made in the counter-claim was not pressed by B. Hence, the question of maintainability was not decided by the High Court. In Sri Dinesh Poojary (supra), A had filed a suit for perm....