TaxTMI 
TaxTMI 
2024 (6) TMI 1615
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....al relief of permanent prohibitory in respect of suit land against the defendant. The case of the plaintiff was that he was owner in possession of the suit land, upon which existed a pacca residential house. Two persons, who were his remote relatives, approached him for the sale of the suit land to the defendant and he agreed to sell the suit land to the defendant for a consideration of Rs.12,50,000/-. His precise case was that a fraud was played upon him by the defendant, who got executed sale deed by misrepresenting therein that the sale consideration was Rs.2,50,000/- instead of Rs.12,50,000/-. It was in this backdrop that the suit for declaration and consequential relief of permanent prohibitory injunction was filed. The defendant while resisting the suit, also preferred a counter claim in respect of the suit property and in terms of the counter claim, he claimed that he had become owner of the purchased property referred to in the plaint. It was also the contention of the counter claimant that the non-counter claimant had not delivered the possession of the house in question within the agreed time, in terms of an executed affidavit, therefore, a prayer was made in the counter ....
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....e and so was the composite single appeal filed by the plaintiff against the judgment and decree passed by the learned trial Court. 7. The reliefs prayed for by the plaintiff and the counter claimant in short have already been mentioned by me hereinabove. 8. A Three Judge Bench of the Hon'ble Supreme Court of India in a matter reported in AIR 1993 Supreme Court 1202, titled as Premier Tyres Limited versus Kerala State Road Transport Corporation, while dealing with a situation where suits were decreed by common judgment and appeal was filed against one judgment and decree, whereas appeal was not filed in the connected case file that finality of finding recording in the connected suit, due to non-filing of appeal precludes the Court from proceedings with appeal in other suit. Hon'ble Supreme Court was pleased to hold that effect of non-filing of appeal against a judgment or decree is that it become final and as this finality can be taken away only in accordance with law, therefore, same consequences follows when a judgment or decree in a connected suit is not appealed from. Thereafter, Hon'ble Supreme Court in a matter reported in (2015) 2 Supreme Court Cases 682, titled as Rajn....
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.... the Tenants Appeal, and as we expected, the gravamen of the assault was the public character and nature of the Trust and the legal imperfection of its transfer. This also fortifies the analysis that the dispute raised by the Tenants in their suit as well as their defence to the Trust's suits was that mentioned in the preceding sentence. This is indeed remarkable since the Tenant was fully alive to the detrimental nature of the decision in O.S. 5/78 and that it critically crippled its rights and interests, as is evident from the fact that the Tenant filed a Review bearing CRA No. 1/1993, which by a detailed Judgment dated 19.3.1999 was dismissed. So far as the contentions of the parties are concerned, the First Appellate Court had noted, inter alia, that the Tenants had denied any liability towards the arrears of rent; that the Tenant had argued that the Trust's Suits were not maintainable in law for want of necessary sanction under Section 25 of the Hindu Religious Institutions Act, 1972; that the Tenant did not admit the validity of the Sale Deed dated 1.7.1976 on the grounds that, having regard to Section 25 of the Hindu Religious Institutions Act, 1972, it was a nullity. The Fi....
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....ict in O.S.7/78 in respect of the findings of the Trial Court common to O.S.6/78; since the Trust had not assailed the rejection of its plea that a separate tenancy governed the claim in O.S.7/78 that part of the verdict had attained finality. The First Appellate Court has opined, in the event erroneously, that the doctrine of res judicata was not attracted to the facts of the instant case. It appears to us that the First Appellate Court lost perspective of the position that Section 116 of the Evidence Act rendered impermissible and incompetent any challenge to the title of the Trust/Landlord which had put the Appellant in possession of the demised property. It is also noteworthy that the Tenant had contested the legal capacity of the Trust/Landlord to convey the property to the Transferees. Ergo, it was nobody's case that although the Trust had title to the suit property at the inception it had lost it subsequently. There is in fact a stark omission to discuss this aspect in the Judgment of the First Appellate Court, which therefore erred in concluding that the Trust/Landlord was a public trust and was, accordingly, incompetent to sell the Trust property. This is all the more sign....
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....m 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 proce....
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....fect of a decision given by the trial court on the merits is to file an appeal and let that appeal be dismissed on some preliminary ground, with the result that the decision given on the merits also becomes useless as between the parties." Sheodan Singh took note of several judgments of the High Courts, which preferred to overlook procedural technicalities ostensibly in the interests of the merits of the matter, but did not state its final opinion, which has propelled us to do so in order so that the divergent opinions be interred and dissonance be removed. 20. On the issue of applicability of res judicata in cases where two or more suits have been disposed of by one common judgment but separate decrees, and where the decree in one suit has been appealed against but not against the others, various High Courts have given divergent and conflicting opinions and decisions. The High Court of Madras and erstwhile High Courts of Lahore, Nagpur and Oudh have held that there could be no res judicata in such cases whereas the High Courts of Allahabad, Calcutta, Patna, Orissa and erstwhile High Court of Rangoon have taken contrary views. It should also be noted that there are instanc....
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....reference to the decrees, which are appealable under Section 96 of the CPC and not with reference to the judgment (which has been defined differently), but with respect to decrees in the CPC; that non-confirmation of a decree in appellate proceedings has no consequence as far as it reaching finality upon elapsing of the limitation period is concerned in view of the Explanation II of Section 11, that provides that the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court; and that Section 11 of the CPC is not exhaustive of the doctrine of res judicata, which springs up from the general principles of law and public policy. 22. Procedural norms, technicalities and processal 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 ....
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.... plaintiff-Corporation. Defendant rather than filing two separate appeals, one against the decree which was passed in favour of the plaintiff-Corporation by learned trial court in its civil suit and second against the dismissal of his counter claim, filed only one appeal before the learned appellate court. In my considered view, the defendant erred in doing so because as the partial decreeing of the suit of the plaintiff-Corporation and dismissal of the counter claim of the defendant were two distinct adjudications though made by way of same judgment and decree by learned trial court, both these adjudications assumed the status of a decree and they required to be challenged separately and filing only one appeal against both the said adjudications was not permissible in law. As I have already discussed above, it has been categorically held by Hon'ble Supreme Court in such like matters that a Court may draw a formal decree or not but if by virtue of the judgment of the Court the rights have finally been adjudicated then the same would assume the status of a decree. As the adjudication on the suit filed by the plaintiff-Corporation and adjudication on the counter claim filed by the de....
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....tinued, dismissed or withdrawn, counter claim can be decided independently on merits. In fact counter claim has to be treated as a plaint and is governed by the Rules applicable to plaint and similarly the reply filed in answer to counter claim is to be treated as written statement and is governed by Rules applicable to written statement. In view of the findings returned above, this appeal is allowed and the judgment and decree passed by learned appellate court in Civil Appeal No. 59 of 2005 dated 30.11.2007 is set aside by holding that as defendant had not filed two separate appeals against the judgment and decree passed by learned trial court in favour of the plaintiff- Corporation and against the dismissal of his counter claim which findings acted as res judicata vis-a-vis each other, single appeal so filed by defendants was not maintainable before the learned appellate court. The Substantial question of law is answered accordingly. In view of findings returned in this appeal, in my considered view there is no necessity of adjudicating upon the other substantial question of law which was framed by the Court on 28.7.2008. No order as to costs. Miscellaneous application(s), if any....
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....ying/reversing/affirming judgment of the trial Court, the aggrieved party, would be required to challenge both by two separate appeals, in absence of which, non-filing of appeal against one shall attract bar of the principles of resjudicata against another. (vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res judicata and such dismissal would satisfy the requirement of appeal being heard and finally decided on merits "in a former suit" for the purpose of attracting principles of res judicata. 43. In view of the position of law delineated hereinabove, the judgment passed by this Court in RSA No.561 of 2005, titled Pohlo Ram vs. Jindu Ram and others decided on 28.10.2005 cannot be held to have laid down good law whereas judgments passed in (i) Smt. Satya Devi vs. Partap Singh and others, AIR 2006 HP 75 and (ii) H.P. State Forest Corporation through its Divisional Manager vs. Kahan Singh, 2017(1) Him. L.R. 36 and in (iii) Mohan Singh vs. Inder Singh & others 2017(1) Him. L.R. 368, are held to have been decided correctly." 12....