Case: M/S RAMNATH EXPORTS PVT. LTD Vs. VINITA MEHTA &amp; ANR

raised for filing only one appeal and still the said defect was not rectified by the appellant; f. Learned counsel placed reliance on following judgments to substantiate the submissions – i. Sri Gangai Vinayagar Temple & Anr. Vs. Meenakshi Ammal & Ors., (2015) 3 SCC 624 ; ii. V. Natarajan Vs. SKS Ispat & Power Ltd. & Ors., Civil Appeal No.3327 of 2020) iii. B. Santoshamma & Anr. Vs. D. Sarla & Anr., 2020 SCC OnLine SC 756; 8. After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of 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 – …….Learned Counsel for the respondent wants to file objection against CLMA No.4365/2008. Two weeks time is given to file objection/counter affidavit. Thereafter two weeks time is given to file rejoinder by the appellant. List this application for disposal after the expiry of aforesaid period……. 10. The contention of the appellant with vehemence is that the application CLMA seeking permission to file joint appeal against common judgment and two decrees has not been decided by the impugned order, though at the time of admitting the appeal and issuing notice, objections were called. In the counter-affidavit filed by the respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability 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 spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant. 11. In view of the foregoing, this Court is not expressing any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application CLMA filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees. Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. After having heard learned counsel for parties and on perusal of the material available, we have read the provision of Section 96 of CPC, which provides for filing of an appeal from the decree by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Courts. It is also settled that an appeal is a continuation of the proceedings of the original court. Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of 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.In the counter-affidavit filed by the respondent even before this Court, the said fact has not been contested or refuted. In the order, it has also not been mentioned that dismissal of the appeal would lead to decide all pending applications including CLMA. As per record, it is clear that the High Court admitted the appeal on 18.07.2008 and CLMA was awaiting its fate for almost about a decade. By the impugned order passed on 04.07.2018, first appeal was dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata. There is not even any without observation that permission as sought to file one appeal cannot be granted. The record indicates that the CLMA filed by the appellant seeking permission to file one appeal was not decided. It is to observe, once at the time of admission of first appeal, despite having objection of maintainability 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 spirit of its own order dated 18.07.2008. In our considered view also, the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit No.411 of 1989. Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant.11. In view of the foregoing, this Court is not expressing any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application CLMA filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees. Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits.