RSA No.2710 of 1987 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2710 of 1987 (O&M) Date of decision: 18.3.2010 Harjeet Singh and others ............Appellants Versus Mehar Singh .........Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. M. L. Sarin, Sr. Advocate with Mr. Vijay Sharma, Advocate for the appellants. Mr. G. S. Bal, Advocate for the respondent. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. This is the second appeal filed by the defendants/appellants, assailing the judgment and decree dated 25.7.1987, passed by the first Appellate Court/Addl. District Judge, Patiala, thereby allowing the appeal filed by the plaintiff/respondent. Plaintiff and defendants have filed two suits against each other claiming permanent prohibitory injunction. 2. Both the suits filed by the plaintiff and defendants against each other bearing Civil Suit No.11T/20.8.83 and Civil Suit No.295/5.10.83 were consolidated, heard and decided by learned trial Court vide judgment and decree dated 4.6.1986. Learned trial RSA No.2710 of 1987 (O&M) 2 Court dismissed the suit filed by the plaintiff restraining the defendants not to make interference in the possession of the plaintiff over the property in dispute; however, suit filed by the defendants against the plaintiff for permanent injunction was decreed by the learned trial Court, restraining the plaintiff not to make interference in the possession of the defendants. 3. Feeling aggrieved from the judgment dated 4.6.1986 passed by the learned trial Court, plaintiff preferred one appeal bearing C.A. No.235 of 19.8.86 before the first Appellate Court challenging the judgment and decree dated 4.6.1986 passed by the Sub-Judge, Ist Class, Patiala/trial Court dismissing the suit of the plaintiff. However, no appeal was filed by the plaintiff against the judgment and decree of the same date i.e. 4.6.1986 decreeing the cross suit of the defendants for injunction against the plaintiff. 4. Defendants/present appellants, who were respondents before the first Appellate Court had submitted before the first Appellate Court that one appeal filed by the plaintiff against the dismissal of his suit is not maintainable and was barred by principle of res judicata, in view of the fact that plaintiff had not challenged the judgment and decree passed by the learned trial Court in the cross- suit against the plaintiff, thereby allowing the decree passed against the plaintiff to attain the finality. However, learned first Appellate Court did not agree with the contentions raised by the defendants. Learned first Appellate Court placed reliance on judgment of Lahore High Court in the matter of Mst. Lachmi v. Mst. Bhuli reported in AIR 1927 Lah. 289 and judgment passed by the Hon’ble Apex Court in the matter of Narhari v. Shanker reported in AIR 1953 S.C. 419 and observed that one appeal filed by the plaintiff against the RSA No.2710 of 1987 (O&M) 3 dismissal of his suit would not be barred by res judicata despite of the fact plaintiff did not file any appeal against the same very judgment decreeing the suit filed by the defendants against the plaintiff for the same relief of injunction pertaining to the same property. 5. I have heard learned Counsel for the parties and perused the record. 6. In view of the above undisputed facts, the sole substantial question of law arises for consideration is as under:- “ As to whether one appeal filed by the plaintiff against the dismissal of his suit would be barred by principle of res judicata in the event of non-filing of appeal by the plaintiff against the decree passed by the learned trial Court in the cross-suit of the defendants against the plaintiff pertaining to the same property; even though both the cross suits filed by the plaintiff and defendants were consolidated, heard and decided by one common judgment of the learned trial Court?” 7. Undisputedly, plaintiff had filed the Civil Suit No.11T/20.8.83 against the defendants seeking permanent prohibitory injunction not to dispossess the plaintiff from the property in dispute. Undisputedly, defendants also filed Civil Suit No.295/5.10.83 against the plaintiff restraining the plaintiff not to make any interference in the possession of the defendants over the same property in dispute. Undisputedly plaintiff as well as defendants both were claiming their respective possession over the RSA No.2710 of 1987 (O&M) 4 same disputed property. Undisputedly, both the suits were consolidated, heard and decided by the learned trial Court vide judgment and decree dated 4.6.1986 dismissing the suit of the plaintiff while decreeing cross suit of the defendants. Undisputedly, plaintiff had preferred first appeal only against the judgment and decree dismissing his suit and did not file any appeal against the judgment and decree decreeing the cross-suit of the defendants. In view of the above decree passed by the learned trial Court decreeing the suit of defendants became final between the same parties for non filing of the first appeal. 8. Sections 10 and 11 of the Code of Civil Procedure are being reproduced herein as under:- “10. Stay of suit. No Court shall proceed with the trial of any suit in which the matter in issue is also di- rectly and substantially in issue in a previ- ously instituted suit between the same par- ties, or between parties under whom they or any of them claim litigating under the same ti- tle where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court be- yond the limits of [India] established or contin- ued by [the Central Government] [***] and having like jurisdiction, or before [the Su- preme Court]. Explanation- The pendency of a suit in a for- eign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action. 11. Res judicata. RSA No.2710 of 1987 (O&M) 5 No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in is- sue in a former suit between the same par- ties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subse- quent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this sec- tion, the competence of a Court shall be de- termined irrespective of any provisions as to a right of appeal from 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, ex- pressly 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 substan- tially 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 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 RSA No.2710 of 1987 (O&M) 6 deemed to claim under the persons so litigat- ing. [Explanation VII.- The provisions of this sec- tion shall apply to a proceeding for the execu- tion of a decree and reference in this section to any suit, issue or former suit shall be con- strued as references, respectively, to pro- ceedings for the execution of the decree, question arising in such proceeding and a for- mer proceeding for the execution of that de- cree. Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwith- standing that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]” 9. Section 10 C.P.C. provides to stay the proceeding of the subsequent suit during the pendency of the previous suit on the principle of decree passed in previous suit shall be res judicata in a subsequent suit. Purpose of Sections 10 and 11 C.P.C. is to avoid conflicting views and to attain the finality in a lis between the parties. If the Court has its wisdom consolidated both the suits between the parties instead of staying subsequently instituted suit, then also decree passed in one suit shall bind another cross-suit if decree is not challenged. 10. The Hon’ble Apex Court in the matter of Sheodan Singh v. Daryao Kunwar reported in AIR 1966 Supreme Court 1332(1) in paragraph No.12, has discussed earlier judgment of the Hon’ble Apex Court in the matter of Narhari (supra) (relied upon by the first RSA No.2710 of 1987 (O&M) 7 Appellate Court) and in paragraph No.20 has observed as under:- “12. Re. (iii): Then it is urged that all the four suits were consolidated and decided on the same day by the same judgment and there can therefore be no question that suits Nos. 77 and 91 were former suits and thus the decision as to title in those suits became res judicata. It is not in dispute that the High Court's decision in the appeals arising from suits Nos. 77 and 91 was earlier. Reliance in this connection is placed on the decision of this Court in Nahari v. Shankar [1950] S.C.R. 754 (AIR 1953 SC 419). That case however has no application to the facts of the present case, because there the suit was only one which was followed by two appeals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepared. An appeal was taken against one of the decrees. In those circumstances this Court held that as there was only one suit, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos' 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must RSA No.2710 of 1987 (O&M) 8 therefore fail. 20. A consideration of the cases cited on behalf of the appellant therefore shows that most of them are not exactly in point so far as the facts of the present case are concerned. Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be resjudicata whatever may be the reason for the dismissal…..” 11. In view of the above, it is thus clear that judgment of the Hon’ble Apex Court in Narhari (supra) has no application in the facts and circumstances of the present case and learned first Appellate Court has wrongly placed reliance on it. 12. The Hon’ble Apex Court in the matter of Harbans Singh and others v. Sant Hari Singh and others reported in (2009) 2 Supreme Court Cases 526 in paragraph Nos.15 and 18 has observed as under:- RSA No.2710 of 1987 (O&M) 9 “15. Both the suits, as noticed herein- before, were consolidated. They were heard together. The disputes between the parties to both the suits were common. The issues raised therein also were common. The Man- aging Committee filed a suit for declaration that it was in management and control of the said Gurudwara Sahib and was entitled thereto as also a declaration that the respon- dent was not a Mohtmim of the said Gurud- wara and, thus, not entitled to manage its af- fairs. As the said decree had attained finality, it is binding on the appellants also. Appel- lants, therefore, in law, were required to pre- fer another Second Appeal against the judg- ment and decree passed in the said suit. 18. In Premier Tyres Limited vs. Kerala State Road Transport Corporation, this Court held: ‘4....The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non-fil- ing of appeal against a judgment or decree is that it becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from. 5. Mention may be made of a Constitution Bench decision in Badri Narayan Singh v. Kamdeo Prasad Singh. In an election petition filed by the respondent a declaration was sought to declare the election of appellant as invalid and to declare the respondent as the elected candidate. The tribunal granted first relief only. Both appellant RSA No.2710 of 1987 (O&M) 10 and respondent filed appeals in the High Court. The appellant's appeal was dismissed but that of respondent was allowed. The appellant challenged the order passed in favour of respondent in his appeal. It was dismissed and preliminary objection of the respondent was upheld. The Court observed: ‘15….We are therefore of opinion that so long as the order in the appellant's Appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not 9 have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.’ ” 13. In view of the above, the settled position of law emerges is, if two suits, filed by the parties against each other pertaining to the same property involving same questions, were consolidated, heard and decided by the Court by a common judgment, then appeal filed against one of the decree would not be maintainable and would be barred by principle of res judicata. 14. In view of the discussions made herein above, judgment passed by the first Appellate Court cannot be sustained in the eye of law. The first appeal filed by the plaintiff was not maintainable and was barred by principle of res judicata. 15. The present appeal is allowed. Judgment and decree passed dated 25.7.1987 passed by the first Appellate Court is set aside. Judgment and decree dated 4.6.1986 passed by the learned trial Court is restored. Parties are directed to bear their own costs. RSA No.2710 of 1987 (O&M) 11 (ALOK SINGH) 18th March, 2010 JUDGE ashish