Gujarat High Court
Kokilaben Shaileshkumar Shah vs Kantilal Purshottamdas Patel (Since … on 20 March, 2026
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026
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Reserved On : 11/09/2025
Pronounced On : 20/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 356 of 2000
With
R/CROSS OBJECTION NO. 155 of 2005
In
R/FIRST APPEAL NO. 356 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
==========================================================
Approved for Reporting Yes No
==========================================================
KOKILABEN SHAILESHKUMAR SHAH & ORS.
Versus
KANTILAL PURSHOTTAMDAS PATEL (SINCE DECEASED) & ORS.
==========================================================
Appearance:
MS SHIKHA D PANCHAL(10764) for the Appellant(s) No. 1,2.2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 1
MR APURVA R KAPADIA(5012) for the Defendant(s) No. 3,4
MR MEHUL S SHAH(772) for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Captioned appeal is directed against the judgment dated
18.03.2000 (hereinafter referred to as “the impugned
judgment) passed in Special Civil Suit of 176 of 1991
(hereinafter referred to as “the Civil Suit”). Special Civil Suit
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no.176 of 1991 was preferred by the appellants-original
plaintiffs seeking decree for specific performance of the
agreement to sell dated 01.06.1989 (hereinafter referred to as
“the agreement to sell”) executed by the original defendants
in favour of the appellants-original plaintiffs of the land
bearing survey no. 301/4, block no. 403 admeasuring 11011
sq. yards i.e. 9206 sq. mtrs. (hereinafter referred to as “the
land in question”). Regular Civil Suit No. 399 of 1990 was
previously filed by the appellants-original plaintiffs, inter alia,
praying for permanent injunction restraining the defendants
or their agents from transferring the land in question to third
party except the plaintiffs.
2. Special Civil Suit no.176 of 1991 was partly allowed and
the plaintiffs were declared entitled to recover an amount of
Rs.1,66,102/- from the defendants together with interest while
Regular Civil Suit no.399 of 1990 was ordered to be dismissed
with cost. Being aggrieved by the impugned judgment to the
extent of the dismissal of the Special Civil Suit no.176 of
1991, the appellants-original plaintiffs have preferred the
captioned appeal. For the sake of convenience, the parties
herein are referred to as per their status in the Civil Suit.
3. Pertinently, the captioned appeal is filed challenging the
judgment to the extent to which the Special Civil Suit no. 176
of 1991 is dismissed; however, no appeal is preferred against
the dismissal of Regular Civil Suit no. 399 of 1990. In view of
the above, preliminary objections are raised as regard
maintainability of the captioned appeal by and on behalf of the
original defendants.
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Re: Submissions and counter submissions on
Preliminary Objections.
4. Mr.Mehul Shah, learned Senior Counsel, assisted by
Mr.Apurva Kapadia, learned Advocate submitted that the
plaintiffs instituted the Regular Civil Suit no.399 of 1990
seeking injunction against the defendants on apprehension
that the defendants were likely to dispose of the lands in
question defeating their claim under the agreement to sell.
Subsequently, the plaintiffs instituted the Civil Suit against
the defendants seeking specific performance of the agreement
to sell. Both the Civil Suit and the Regular Civil Suit no.399 of
1990 were tried together and two sets of issues were
formulated. In Civil Suit, issue no. 3 was regarding readiness
and willingness of the plaintiffs to pay the remaining amount
to the defendants as per the terms and conditions of the
agreement to sell. While issue no. 4 was whether the plaintiffs
prove that the defendants had failed to comply with the terms
and conditions of the agreement to sell? Issue no. 1, in
Regular Civil Suit no. 399 of 1990 was whether the plaintiffs
prove that the defendants have committed the breach of the
terms of the agreement to sell?
4.1 It is next submitted that as the issues were decided
together and evidence being common for all the issues,
common findings are rendered. While deciding the issues, the
learned Judge has in paragraph 23 concluded that the
plaintiffs have committed the breach of the agreement to sell
and not the defendants. In paragraph 24, while dealing with
the aspect of readiness and willingness, it is observed that the
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plaintiffs have neither paid the remaining amount nor have
they performed their part of the contract. Observing thus,
issue nos. 3 and 4 of the Civil Suit and issue no. 1 of the
Regular Civil Suit no. 399 of 1990 were decided together and
in negative. Resultantly, the Civil Suit is partly allowed while
the Regular Civil Suit no. 399 of 1990 is dismissed but, is not
subject matter of challenge and has attained finality. It is
submitted that on the basis of the findings namely breach
committed by the plaintiffs, the suit for permanent injunction
is dismissed and specific performance is not granted on the
basis of the said findings except the refund of money.
4.2 It is next submitted that the captioned appeal is only
filed against the judgment and decree passed in Civil Suit
whereas no appeal is filed against the judgment and decree
passed in Regular Civil Suit no.399 of 1990. In the absence of
separate appeal by the plaintiffs against Regular Civil Suit
no.399 of 1990, the findings therein would operate as res
judicata in the captioned appeal inasmuch as, if the plaintiffs
allowed the decree passed in Regular Civil Suit no. 399 of
1990 to become final, all the findings recorded would stand
confirmed. If the appeal filed against the decree in Civil Suit
with a request to set aside the impugned judgment, were to
be allowed, the resultant effect would be that there will be
two inconsistent decrees, for, on the very same evidence and
facts, there is a decree concluding that there is no breach on
the part of the defendants but the plaintiffs. If the request of
the plaintiffs is accepted and the findings were to be reversed,
then for the present Civil Suit, those findings would not
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remain whereas, for Regular Civil Suit no.399 of 1990 those
findings would stand, particularly when the cause of action for
filing the suits is the same.
4.3 It is submitted that section 96 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the Code”)
speaks about appeal to be filed from every decree and not
against decrees. It is submitted that as the two suits were
filed, requirement was of filing two separate appeals;
however, only one appeal is filed restricting the challenge
only to a limited extent. Proviso to sub-rule (1) of Rule 1 of
Order XLI requires that when two or more suits are tried
together and a common judgment is delivered thereof and if
two or more appeals are filed, the appellate Court may
dispense with filing of more than one copy of the judgment.
4.4 It is further submitted that section 11 of the Code, states
that no Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
substantially in issue in a former suit between the same
parties in a Court competent to try such subsequent suit or
the issue has been subsequently raised and has been heard
and finally decided by such Court. It is submitted that the
expression “former suit” denotes a suit which has been
decided prior to the suit in question whether or not it was
instituted prior thereto. Therefore, institution of the suit is not
material and what is material is the suit which has been
decided prior in point of time. In the case on hand, the
Regular Civil Suit no. 399 of 1990, is a suit decided prior in
point of time and would fall within the expression “former
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suit”.
4.5 Reliance is placed on the judgment in the case of Sri
Gangai Vinayagar Temple vs. Meenakshi Ammal & Ors.
reported in (2015) 3 SCC 624 for the proposition that suits in
which common issues have been framed and a common trial
has been conducted, the losing party must file appeals in
respect of all adverse decrees founded, even on partially
adverse or contrary speaking judgments. It has been held that
the decree not assailed thereupon metamorphoses into the
character of a “former suit”. Reliance is also placed on the
judgment in the case of Darayas Bamanshah Medhora vs.
Nariman Bamanshah Medhora reported in 2002 (1) GLR 474.
The judgment of the Apex Court in the case of Ram Prakash
vs. Charan Kaur (SMT) & Anr reported in (1997) 9 SCC 543 is
referred to wherein it is held that where the findings in one
suit is allowed to become final in the absence of an appeal, an
appeal filed against the findings in another suit would be
barred by principles of res judicata. For similar proposition,
reliance is placed on the judgments in the case of Premier
Tyres Ltd. vs Kerala State Road Transport Corporation
reported in AIR 1993 SC 1202 and in the case of Lonankutty
vs. Thomman reported in (1976) 3 SCC 528.
4.6 Another preliminary objection raised by Mr.Mehul Shah,
learned Senior Counsel, is that in the absence of the legal
heirs and representatives brought on the record of one of the
plaintiffs and one of the respondents, the captioned appeal
stands abated. It is submitted that the appellants-original
plaintiffs were two in number and had filed a suit seeking
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specific performance of an agreement to sell executed in their
favour. Original plaintiff no.2 i.e. appellant no.2 herein passed
away on 16.09.2011; however, no steps were taken within the
time prescribed for bringing the heirs on the record. The
plaintiff no.1 had filed a suit in individual capacity as
agreement to sell holder and therefore to say that the legal
heir is already on the record would not be sufficient inasmuch
as, all the heirs would have the right to sue as agreement to
sell holder. Although application was made for bringing the
heirs on the record and were joined vide order dated
02.12.2011; however, not all the legal heirs of plaintiff no.2
are joined. It is submitted that apart from the wife and the
son, the plaintiff no. 2 had other two daughters who have not
been joined as legal heirs. Unless all the legal heirs are on
record, the ingredients contained in provision of Order XXII
Rule 3 are not satisfied and in the absence thereof, the appeal
abates automatically. If it abates qua plaintiff no.2, the entire
appeal would abate qua plaintiff no.1.
4.7 In support of such proposition, reliance is placed on the
judgment in the case of Musammat Hifsa Khatoon vs.
Mohammad Salimar Rahman reported in AIR 1959 Patna 254
(FB). Reliance is further placed on the judgment in the case of
Balwant Singh vs. Jagdish Singh reported in (2010) 8 SCC 685
for the proposition that a suit or an appeal abates
automatically if the legal representative, are not brought on
the record within the stipulated period. It is also noted that
abatement is automatic in the absence of any application for
bringing the heirs on record within the stipulated period and
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specific order is not required by the Court. Contention is
raised regarding the effect of abatement of appeal on
surviving appellant and for which, reliance is placed on the
judgment in the case of Goli Vijayalakshmi vs. Yendru
Sathiraju (Dead) by Lrs. reported in (2019) 11 SCC 352,
wherein it is held and observed that it is to be examined that
the judgment and decree passed in the proceedings vis-a-vis
the remaining parties would suffer from the vice of
contradictory or inconsistent decrees inasmuch as, two
decrees are incapable of enforcement or would be mutually
self destructive and that the enforcement of one would negate
or render impossible the enforcement of the other. It is
submitted that for plaintiff no. 2 there will be no decree while
for plaintiff no. 1 there will be a decree and it would result in
inconsistency. Reliance is further placed on the judgment in
the case of Venigalla Koteshwaramma vs. Malampati
Suryamba & Ors. reported in (2021) 4 SCC 246. It is held and
observed that when there is a joint decree and is indivisible,
the appeal against the other respondent also will not be
proceeded with and will have to be dismissed as a result of
abatement of the appeal against the deceased party.
4.8 It is further submitted that out of the four original
defendants-respondents, defendant nos. 1 and 2 have passed
away. Apart from the respondents, there are other legal heirs
of the defendant no. 1 which is clear from the sale deed
produced on the record of the Misc. Civil Application. The
respondent nos. 3 and 4 are the son and daughter-in-law
respectively; however, two daughters and one heir of the
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deceased son of defendant no. 1 are not on the record. It is
submitted that the nature of the suit is such that the decree is
inseverable, plaintiffs being joint agreement to sell holders
and if one cannot pass a decree on similar facts no decree can
be passed on surviving heirs. Accordingly, the appeal abates.
Applying the same analogy, the defendants having jointly
executed the agreement to sell, passing decree against the
surviving respondent would be inconsistent. Reliance is
placed on the judgment in the case of Suresh Chandra (decd)
Thr. Lrs. vs. Parasram reported in 2025 (0) AIJEL-SC 75601.
The issue was whether abatement of appeal, on non-
substitution of deceased party, is partial or whole. It is held
and observed that in case of a joint and indivisible decree, the
abatement of appeal in relation to one or more of the
appellant(s) or respondent(s) on account of failure to bring on
record his or their legal representatives in time would prove
fatal to the entire appeal because proceedings qua the
surviving party or parties may give rise to inconsistent or
contradictory decrees. It is therefore urged that accepting the
preliminary objections, the appeal may be dismissed.
5. Mr.Shalin Mehta, learned Senior Counsel appearing with
Ms.Shikha Panchal, learned Advocate, submitted that the
objection regarding maintainability of the appeal was never
raised for all these years including at the stage of the
admission and hence, at this length of time it should not be
allowed to be raised by the defendants who have sold the
property to the third party. It is further submitted that the
objection raised that every single heir or all the heirs are to be
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brought on record is not the requirement of law, inasmuch as,
neither the Code nor the judgments make it mandatory to
bring on record all the heirs. It is submitted that in the civil
application for bringing heirs on the record, on 02.12.2011
the order is passed; however, no objection was raised that the
other heirs have not been brought on the record. Objection
could have been raised back then; however, having not raised
the objection, now, it would be impermissible for the
respondents to challenge non-joining of all the heirs. As per
the provisions of Order XXII Rule 10A of the Code, duty is cast
upon the pleader to disclose about the death of the party, but
the respondents did not do so and they failed in their
obligation. For fourteen years, no contest has been laid and
now, the said objection cannot be entertained.
5.1 It is submitted that a bare reading of the provision of
Order XXII Rule 3A suggests that it does not require “all the
legal representatives” of the defendant/ plaintiff to be brought
on the record, but the emphasis is exclusively on legal
representatives. It is submitted that in the case of Balwant
Singh vs. Jagdish Singh(supra), no steps were taken for
bringing the legal representatives on record for a
considerable period of time and the application was filed with
a delay which was contested on the ground that the suit is
already abated. The Apex Court has noted that the applicants
therein were totally callous about pursuing the appeal and
have acted irresponsibly and with negligence. The application
was not allowed and the suit got abated. In the case of Goli
Vijayalakshmi vs. Yendru Sathiraju(supra), as per the facts, it
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emerges that no application was made for bringing the heirs
on record. The Apex Court therefore, noted that the
suit/appeal shall abate against the deceased party when no
application is made to bring on record the legal
representatives of the deceased within the stipulated time. It
is submitted that the provisions of Order XXII Rule 3A would
not apply and the right to sue survives in the remaining
plaintiffs i.e. Kokilaben and one of the heirs brought on the
record. In the case on hand, there was no need of making any
application but still, the application was made and one of the
heirs was brought on the record which, would be sufficient
and it cannot be said that the appeal is abated. Similarly, the
judgments in the cases of Venigalla Koteshwaramma vs.
Malampati Suryamba (supra) and Sureshchandra vs.
Parasram(supra) would not apply considering the fact that the
heirs were not brought on the record. It is also submitted that
as per Order XXII Rule 2, right to sue survives only to the
surviving plaintiff or plaintiffs alone; however, in case of more
than two plaintiffs, plaintiffs alone applies.
5.2 It is further submitted that two suits were filed; one
seeking permanent injunction and another seeking specific
performance and the captioned appeal, is only against the
judgment refusing the specific performance. It is submitted
that the question substantially in issue in both the suits is not
common at all inasmuch as, one suit is for permanent
injunction and the second is for specific performance. It is
submitted that the judgment cited in the case of Premier
Tyres Ltd. vs Kerala State Road Transport Corporation(supra)
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would be of no help considering the fact that cross-suits were
filed; one suit was for recovery of the certain amount due and
another suit by another party for recovery of excess amount
and both were partially allowed; however, no appeal was filed
against the dismissal of the suit for the part of the claim but
appeal was filed against the decree granted in favour of the
other party. It is in these circumstances that the Apex Court,
held that non-filing of the appeal precludes the Court from
proceeding with appeal in other suit. It is submitted that in
the case on hand neither cross-suits are filed nor common
issues are formulated and hence, the judgment would not
apply. While distinguishing the judgment in the case of
Lonankutty vs. Thomman(supra), it is submitted that cross-
suits were filed and the suit filed by the appellant therein was
partly allowed and the suit filed by the respondent therein
was disposed of. It is in this context, the Apex Court, observed
that the decision of the Court below, arising out of the suit of
the respondent became final and conclusive, it having not
been appealed. One of the issue in both the suits, was directly
and substantially in issue in a former suit, which was heard
and finally decided in proceedings between the same parties.
In this context it has been held and observed that the decision
of the District Court was given in an appeal arising out of a
suit which though instituted subsequently stood finally
decided, before the High Court disposed of the second appeal,
the decision was therefore one in a “former suit” within the
meaning of section 11 of the Code. Similar facts were there in
the cases of Darayas Bamanshah Medhora vs. Nariman
Bamanshah Medhora(supra) as well as Gangai Vinayagar
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Temple vs. Meenakshi Ammal(supra).
5.3 It is next submitted that initially a suit was filed seeking
permanent injunction followed by a notice and time to
perform was extended upto 31.08.1990. It is thereafter, the
suit for specific performance was filed. Therefore, one needs
to examine the point directly and substantially in issue in both
the suits. Section 96 of the Code, says about laying of the
appeal but not filing. In the alternative, it is submitted that
Order XLI Rule 1 speaks about preferring of the appeal in the
form of a memorandum and that it should be accompanied by
a judgment, while Rule 33 speaks about the powers of the
appellate Court to pass any decree and making any order,
which ought to have been passed or made. It is submitted that
the appellate Court in a challenge to one decree can pass an
order, that trial Court should have passed, although appeal is
not filed against the other decree.
5.4 It is submitted that the suit contains pleadings to the
effect that since there is a registered agreement to sell, the
plaintiff has a right of enforcement. It is submitted that the
plaintiffs are required to convince the Court that the Regular
Civil Suit no. 399 of 1990 was filed only because there was an
apprehension that the property was likely to be transferred to
a third party and the plaintiffs were not concerned with the
specific performance of the registered agreement to sell. If
this is established, then the judgment in the case of Shri
Gangai Vinayagar Temple vs. Meenakshi Ammal(supra), would
not apply, for, despite there being no necessity to bring in the
issue of title, the tenant made ownership the fulcrum. The
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Apex Court held that the tenant had no option but to suffer
the consequences because he made ownership the central
issue, though it was not.
5.5 It is submitted that the relevant question therefore is
whether specific performance was central to the Regular Civil
Suit no. 399 of 1990. If the Court comes to the conclusion that
it was, then the said judgment would apply, though the
argument under Order XLI Rule 33 still remains. The Regular
Civil Suit no. 399 of 1990 was one for permanent injunction,
whereas the Civil Suit is for specific performance. The
permanent injunction was based purely on fear of
apprehension, while the Civil Suit is for specific performance,
independent of Order XLI Rule 33 of the Code. Therefore, the
averments in the Regular Civil Suit no. 399 of 1990, the
averments in the Civil Suit, and its nature need to be
examined. Reliance is placed on the judgment in the case of
Bihar Supply Syndicate vs. Asiatic Navigation & Ors. reported
in (1993) 2 SCC 639. It is, inter alia, held that Rule 33 of
Order XLI is in three parts and the third part provides that
where there have been decrees in cross-suits or where two or
more decrees are passed in one suit, power is directed to be
exercised in respect to all or any of the decrees, although an
appeal may not have been filed against such decrees. Further
reliance is placed on the judgment in the case of State of A.P.
& Ors. vs. B.Ranga Reddy (Dead) by Lrs. & Ors. reported in
(2020) 15 SCC 681.
5.6 It is submitted that even if no appeal is filed, an
appellate Court can exercise power under Order XLI Rule 33
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of the Code and grant relief in the sole appeal and pass the
order which the trial Court ought to have passed. It is also
submitted that the power under Order XLI Rule 33 of the
Code is wide and can be exercised even when no appeal is
filed against an adverse decree. Even where an issue has
attained finality for want of challenge, and if the controversy
is still alive, the Court can exercise powers under Order XLI
Rule 33 of the Code.
5.7 It is further submitted that there is no doubt that the
agreement to sell was the cause for filing the suit, but that
does not appear to be the test. Explanation VIII to Section 11
refers to the word “issue”. That issue is not the issue decided
by the trial Court. It is submitted that the right to enforce
specific performance of the registered agreement to sell is the
right which the plaintiffs possess and seek before this Court.
The question is whether this is the issue in both the suits.
Though an issue was framed in the earlier suit, the Apex
Court does not say that one must merely look at the framed
issue and conclude the matter. The Court is required to go
into the pleadings to decide what the suit is truly about. In the
present case, though issues were framed, the plaint of the
Regular Civil Suit no. 399 of 1990 does not even mention
specific performance and is only based on apprehension. It is
thus urged that the preliminary objections do not merit
acceptance and be rejected.
6. Mr.Mehul Shah, learned Senior Counsel in brief
rejoinder submitted that the contention that if the prayers are
distinct principle of res judicata would not apply, is misplaced.
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It is submitted that the issue is directly and substantially in
issue inasmuch as, perusal of the averments of Regular Civil
Suit no. 399 of 1990, would suggest that entire pleading is
based on non-performance of agreement to sell at the hands
of the defendants. It is submitted that the cause of action
mentioned in paragraph 7 of the Civil Suit, and cause of action
contained in Regular Civil Suit no. 399 of 1990 were the same
and hence, considering the commonality of the facts, the
issues were formulated. It is submitted that before the order
consolidating suit was passed, the issues were formulated
therefore, all the issues are not common but, the issues were
decided commonly which satisfies the requirement of res
judicata. It is also submitted that prayers prayed for in the
suits would be irrelevant as, section 11 does not refer to
“prayers”. If the issues, are common condition of applicability
of res judicata stands satisfied. It is submitted that nowhere
either under section 11 of the Code or any of the judgments
there is an indication that the principle applies to the cross-
suits. The principle is laid down on the basis of “former suit”
and not cross-suits. The facts and the principle laid down in
the case of Sri Gangai Vinayagar Temple vs. Meenakshi
Ammal (supra) squarely apply to the facts of the present case.
6.1 It is submitted that reliance placed on Order XLI Rule 33
of the Code is misplaced inasmuch as, considering the fact
that Rule 33 is preceded by Rules 30 to 32 namely the
judgment when and where pronounced, the contents of the
judgment and what the judgment may direct. It is submitted
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reversing or varying the decree from which the appeal is
preferred and it nowhere says about confirming, reversing of
another decree. It is submitted that in the judgment in the
case of Shri Gangai Vinayagar Temple vs. Meenakshi
Ammal(supra) it is clearly held that in the suit where common
issues are framed and common trial is conducted, appeal shall
be filed in respect of all adverse decrees founded even on
partially adverse or contrary speaking judgments. In the case
of Banarasi vs Ram Phal reported in (2003) 9 SCC 606 the
Apex Court, has held and observed that the object sought to
be achieved vide Order XLI Rule 33, by conferment of such
powers on the appellate Court, is to avoid inconsistency,
inequity or inequality in reliefs granted to similarly placed
parties and unworkable decree or order coming into
existence. It is therefore submitted that the provisions of
Order XLI Rule 33 is to adjust the equities amongst the
parties. For similar proposition reliance is placed on the
judgment in the case of Vaibhav Jain vs. Hindustan Motors
Pvt. Ltd. reported in (2025) 2 SCC 208.
6.2 It is next submitted that right to sue survives alone “of
the deceased person” and if it does not survive then Rule 3
comes into picture, further providing consequences of
abatement of the suit and if the suit abates for one of the
plaintiffs, it abates as a whole. It is submitted that appeal in
view thereof is abated qua plaintiff no. 2 and the defendant
nos. 1 and 2 and considering the absence of requisite steps it
will have the effect of abatement of entire appeal. The term
legal representative in the said rule does not mean that onlyPage 17 of 63
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one legal representative. It is also submitted that the duty of
the pleader to inform would not apply in the case of plaintiff
no. 2 as the plaintiff no. 1 knew about his passing and steps
ought to have been taken. With respect to the defendants, it is
submitted that if the party dies, the contract ceases and only
for this limited purpose section 10A casts an obligation upon
the pleader; however, that will not absolve the plaintiffs from
taking steps.
6.3 It is submitted that issues of res judicata and abatement,
both are the issues of jurisdiction of the Court and if they are
accepted as canvased, the appeal would be incompetent and
the same would oust the jurisdiction of the Court. Reliance is
placed on the judgment in the case of Pandurang Dhondi
Chougule & Ors. vs. Maruti Hari Jadhav & Ors. reported in
AIR 1966 SC 153 for the proposition that plea of limitation or
a plea of res judicata is a plea of law concerning the
jurisdiction of the Court which tries the proceedings. It is
submitted that in appeal also, there is a question on
jurisdiction and would oust the jurisdiction of this Court.
7. Mr. Shalin Mehta, learned Senior Counsel while further
responding at the outset, submitted that the judgment of
Pandurang Dhondi Chougule & Ors. vs. Maruti Hari Jadhav &
Ors. (supra) would not apply considering the fact that the
Apex Court has identified the errors which can be considered
by the High Court and is completely dealing with section 115
of the Code. While touching the issue of abatement, it is
submitted that civil applications were filed for bringing the
heirs on the record of the plaintiff no. 2 and the respondentsPage 18 of 63
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which were allowed to be brought on the record by this Court
by passing orders both dated 02.12.2011 in respective civil
applications and no contest was lodged. Therefore, after 15
years the respondents may not be allowed to raise the
objection of abatement of the appeal on the ground of heirs
not brought on the record.
Re: Submissions and counter submissions on merits of
the matter.
8. Having made submissions on the preliminary objections,
the learned Counsel have made further submissions on the
merits of the matter.
8.1 Mr.Shalin Mehta, learned Senior Counsel submitted that
on 05.10.1988 supplementary agreement to sell was executed
followed by registered agreement to sell dated 01.06.1989
further followed by public notice inviting objection on
18.06.1989. Objection was raised by one Renukaben on
27.06.1989 and was subsequently withdrawn on 22.11.1989.
On 11.04.1990, a notice was issued which was objected to by
the plaintiffs by letter dated 28.04.1990; on 25.06.1990, the
plaintiffs required certain steps to be taken, nonetheless the
defendants did not take any steps citing the reasons about
technicality and at no point of time it was the case of the
defendants that the plaintiffs have not performed their part of
the contract. The reservation led to the filing of the suit for
permanent injunction. As it was agreed between the parties to
extend the time upto August, 1990. After eight months, that
on 01.05.1990 the Civil Suit was filed seeking specific
performance.
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8.2 It is submitted that without there being any addition or
deletion, bare reading of the registered agreement to sell,
suggests that all the permissions were to be obtained by the
defendants and the plaintiffs, were to borne the expenses
towards the fees etc. All permissions would include plans as
well and thus the Court’s finding is absolutely perverse when
it says that the plaintiffs were to get NA permission or to
submit the plans. Although, it was never agreed between the
plaintiffs and the defendants. It is next submitted that the
appellant has never backed out of the commitment to pay the
fees because there is no communication from the defendants’
side asking to pay any amount towards the expenses incurred
for NA permission, plans etc. When the plaintiffs wrote to the
defendants for performance, the agreement to sell was
already cancelled on 11.04.1990. The Court has found it in
their favour but, it was a ground which was never raised or
argued and it also does not come out from the pleadings. It is
submitted that the Court has taken upon itself that the
plaintiffs are in breach because the plaintiffs did not pay the
fees; however, there was no correspondence and mere say in
the written statement without documentary evidence, is
absolutely invalid.
8.3 It is further submitted that the reason cited by
defendants in their notice for unilateral cancellation of the
registered agreement to sell is absolutely false as they have
not been able to show to the Court that they in the first place
applied for NA and ULC permissions, and were denied. So the
finding about the plaintiffs being in breach and the defendantsPage 20 of 63
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being not, is absolutely incorrect. It is submitted that the
plaintiffs were fully compliant and the defendants were non-
compliant and dishonest.
8.4 It is submitted that there are sufficient averments
substantiating the aspect of readiness and willingness, on the
part of the plaintiffs because, there is a reference of dates
which is neither denied by the defendants nor is a case put
forth by them that the plaintiffs are not willing to pay the
amount. All throughout, it is clear that the plaintiffs were
ready and willing to pay the remaining amount, but as per the
contract, the condition precedent of the payment was getting
the NA permission. The plaintiffs were all throughout
consistent in their stand, expressing the readiness and
willingness to pay the remaining amount; however, it was the
defendants who were not ready to accept it, citing legal
technicalities and subsequently, cancellation of the agreement
to sell.
8.5 It is next submitted that the Court below has concluded
that the plaintiffs have not paid any amount to the defendants
before approaching the Court; there lies a fallacy considering
the fact that when the contract is unilaterally cancelled the
plaintiffs could not have paid any amount. It is discernible
from the record that upon cancellation of the agreement to
sell the plaintiffs were required to take back the amount
within the stipulated period with a further caution that failing
which it would be forfeited. Such action on the part of the
defendants, was indicative of the fact that the amount would
not have been accepted by the defendants despite thePage 21 of 63
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plaintiffs paying it.
8.6 Mr.Shalin Mehta, learned Senior Counsel has further
submitted that the language contained in the provisions of
sections 63 and 43 of the Bombay Tenancy and Agricultural
Lands Act, 1948, (hereinafter referred to as “the Tenancy Act,
1948”) is slightly different inasmuch as, section 43 envisages
“previous sanction” whereas in section 63, the requirement of
previous sanction is absent. It is submitted that before
entering into the agreement to sell, previous sanction under
section 43(1) is sine qua non and in the absence thereof, the
transaction would be invalid; however, so is not the case with
respect to section 63 of the Tenancy Act, 1948. It is submitted
that in the cases while dealing with similar provisions akin to
section 63, the Apex Court, has permitted passing of
conditional decree for specific performance.
8.7 It is further submitted that the plaintiffs have never
made any false representation about they being agriculturists.
Nonetheless, the contract is very clear about seeking NA
permission first and upon NA permission being in place, the
rigors of section 63 would cease to apply. Hence, the
agreement to sell would not be rendered invalid if after its
execution NA permission is in place. It is submitted that the
reason behind cancellation of the registered agreement to sell
is technicality of law and not that the plaintiffs are not an
agriculturist. Thus, it would be impermissible to propound a
new theory only with a view to defeating the specific
performance, and such attempt is nothing but malafides
exhibited by the defendants.
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8.8 It is submitted that an amount of Rs.1,66,102/- is already
paid to the defendants in the year 1990 and prior thereto,
Banachitti and supplementary agreements were in existence
without there being any allegation of forgery. It is stated that
it is claimed that the defendants were unaware about the
signatures on the agreement to sell; but, it is difficult to
believe for, till the suit is filed, the defence was never taken
that they were misled. It is submitted that if the findings are
based on such theory, for which there is no evidence, it would
be nothing but perversity and becomes a case of no evidence
and hence, should not be allowed.
8.9 Reliance is placed on the judgment in the case of
Krishan Gopal vs. Gurmeent Kaur (Dead) Through Lrs. & Ors.
reported in 2025 INSC 850 for the proposition that to prove
readiness and willingness a purchaser need not necessarily
carry the money with him or vouch a concluded scheme of
finance. In the case on hand the plaintiffs have always shown
readiness and willingness and have paid 25% and were ready
to pay further remainder amount; however, they were the
defendants who never asked to perform the contract.
8.10 Reliance is placed on the judgment in the case of Shaikh
Ismailbhai Hushainbhai (dead) by Lrs. vs. Vankar Ambalal
Dhanabhai (2024) 1 GLH 222 for the proposition that in view
of the language contained in section 63 the rigors of section
43 would not apply as both the provisions, are independent
and distinct of each other. Similarly, reliance is placed on the
judgments in the cases of (i) Ferrodous Estates (Pvt.) Ltd. vs.
P.Gopirathnam (dead) & Ors. reported in 2020 SCC OnLinePage 23 of 63
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SC 825; (ii) Shah Jitendra Nanalal, Ahmedabad vs. Patel
Lallubhai Ishverbhai, Ahmedabad & Ors. reported in AIR 1984
Guj 145; permitting passing of conditional decree for specific
performance upon receipt of the sanction of exemption under
section 20; (iii) G.T. Girish vs. Y Subba Raju (Dead) by Lrs. &
Anr. reported in (2022) 12 SCC 321 for the proposition that in
a case for specific performance of agreement to sell, the sale
is not prohibited but is subject to permission or approval from
the authorities, such contract is enforceable (iv) Vishwa Nath
Sharma vs. Shyam Shanker Goela & Anr. reported in (2007)
10 SCC 595 (v) Maharaj Singh vs. Karan Singh (dead) Thr.
Lrs. & Anr. reported in (2024) 8 SCC 83. It is therefore
submitted that in the context of section 63, passing of
conditional decree is permissible. While concluding, it is
submitted that all permissions were to be obtained by the
defendants; however, defendants never got the permission
and the trial Court read it wrongly that the obligation was of
the plaintiffs to take such permissions. Nonetheless, all
throughout, the plaintiffs were ready and willing to perform
their part of the contract and it was the defendants who
failed; hence, the specific performance ought to have been
allowed, having not done so, the trial Court committed an
error. It is therefore urged that the captioned appeal may be
allowed, and the Civil Suit be decreed.
9. On the other hand, Mr.Mehul Shah, learned Senior
Counsel submitted that issue nos. 3, 4 and 5 were (i)
regarding readiness and willingness on the part of the
plaintiffs and to pay the remaining amount; (ii) plaintiffsPage 24 of 63
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proving that the defendants have failed to comply with the
terms and conditions of the agreement to sell; and (iii) the
defendants proving as regards the bar of the Tenancy Act,
1948. While adverting to issue no. 5, it is submitted that two
things are clear from the evidence of plaintiff no. 2-Exh.21
and is admitted that the plaintiffs are not agriculturists and
the land in question is agricultural land. In paragraph 9, of his
examination-in-chief, it is stated that if the land is not
converted, he is ready and willing to purchase the land as
agricultural land. From the cause title of the suit, it is clear
that the plaintiffs are in the business and that is how in the
judgment the learned Judge, considering the provisions of
section 63(c) of the Tenancy Act,1948 and the bar provided
therein, concluded that the land in question cannot be sold to
a non-agriculturist.
9.1 It is further submitted that during the pendency of the
Civil Suit, application Exh.68 was filed with a request to refer
the matter to the tenancy Court wherein the order was passed
referring the matter to decide the issue, which was subject
matter of challenge before this Court wherein also, the
plaintiffs have taken a categorical stand that they are not
agriculturists and thus the Court has observed about the
statutory bar. It is submitted that there is not much of a
difference in the language of section 43 vis-a-vis section 63, as
prior permission is must. Reliance is placed on the judgment
in the case of Ashwinkumar Manilal Shah & Ors. vs.
Chhotabhai Jethabhai Patel & Ors. reported in AIR 2001 Guj
90 for the proposition that agreement to sell by a person inPage 25 of 63
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favour of a non-agriculturist, shall be invalid and no decree for
specific performance can be passed. It is next submitted that
at the time of filing of the suit seeking specific performance,
necessarily there has to be a valid agreement to sell. Further
reliance is placed on the judgment in the case of Satish Kumar
vs. Karan Singh & Anr. reported in (2016) 4 SCC 352 for the
proposition that jurisdiction to order specific performance of
contract is based on the existence of a valid and enforceable
contract. Specific performance will not be ordered if the
contract itself suffers from defect, which makes the contract
invalid or unenforceable. Reliance is also placed on the
judgments in the cases of Mayawanti vs. Kaushalya Devi
reported in (1990) 3 SCC 1 and Asha John Divianathan vs.
Vikram Malhotra reported in AIR 2021 SC 2932.
9.2 It is next submitted that for a valid contract the
requirements namely lawful consideration, lawful object and
not expressly declared void are crucial. If invalidity is
attached, the transaction is deemed to be declared as void.
Reference is made to the judgment in the case of G.T. Girish
vs. Y Subba Raju and Anr. (supra) . It is submitted that if the
agreement is hit by law no other things are required to be
seen. The judgments cited of passing the conditional decree,
is distinguished on the ground that the agreement is not hit
but, the ultimate transaction solicited by enforcement of
agreement might be hit, if no permission is taken. Therefore,
bar of section 63 of the Tenancy Act, 1948 is rightly answered
in favour of the defendants.
9.3 While adverting to the submission of breach of readiness
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and willingness, it is submitted that there are two limbs
involved. First, that the agreement to sell is cancelled and
second, the distinction between the terms readiness and
willingness. It is submitted that when the agreement to sell is
cancelled, without challenging the cancellation, suit seeking
the specific performance would not be maintainable. It is
submitted that it is a jurisdictional fact and the Court can go
into it. It is submitted that the agreement to sell was
providing the period of nine months which had come to an end
on 28.02.1990 and the first notice was issued on 31.03.1990.
It was required of the defendants to get the NA done and
within two months, the sale deed was to be executed. The said
notice of the plaintiffs was responded on 11.04.1990 and in
paragraph 3, the defendants have cancelled the agreement to
sell. In the said letter, in paragraphs 3 and 5, in no uncertain
terms, the defendants have indicated to the plaintiffs about
cancellation of the agreement to sell. Despite which, in the
pleadings in the suit, there is not a whisper of the
cancellation, let alone, while indicating the cause of action.
Additionally, being aggrieved by the cancellation, the
plaintiffs have filed suits for specific performance, refund and
permanent injunction. Neither is there any cause pleaded nor
prayers made to challenge the cancellation and hence, the
resultant effect is that the plaintiffs accept the cancellation of
the agreement to sell and do not wish to challenge it. In the
absence of any challenge, the Civil Suit seeking specific
performance would not be maintainable. It is submitted that
the jurisdictional fact was whether there was subsisting
agreement or not and in the absence of any existing contract,Page 27 of 63
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the Court shall not proceed further as it will have no
jurisdiction to grant any relief for specific performance. It is
submitted that when the Court has no jurisdiction to examine
the issue the further exercise by the Court entering into the
arena of readiness and willingness, would be in futility.
9.5 It is further submitted that readiness and willingness are
two separate things for, readiness is the capacity to perform
his/her part of the contract while, willingness, is a state of
mind whether the party infact, wishes to perform his/her part
of contract and that would flow from the conduct of the
plaintiffs all throughout. Moreover, readiness and willingness
should continue from the date of agreement itself till the date
of passing of the decree. It is not merely to be pleaded but has
to be established by sufficient evidence and it is only when all
the three ingredients are satisfied, the Court may consider it.
9.6 It is further submitted that clause (c) of section 16 of the
Specific Performance Act, 1963 (hereinafter referred to as
“the Act of 1963”) clearly uses the word “prove” which means
proof of readiness or willingness, either by oral or
documentary evidence. From the oral evidence of the plaintiff
no. 2-Exh. 21, it is discernible that it contains a bare
statement of readiness and willingness and there is no
documentary evidence produced substantiating that the
plaintiffs possessed the means or capacity to pay. In this
background, the learned Judge has categorically observed
that the plaintiffs have not produced any documentary
evidence substantiating the readiness and willingness to pay.
In support of the submission, reliance is placed on thePage 28 of 63
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judgment in the case of Jagjit Singh vs. Amarjit Singh
reported in (2018) 9 SCC 805 wherein, it is held and observed
that the plaintiffs who seek specific performance of contract is
required to lead and prove that he was always ready and
willing to perform his part of the contract. Reliance is placed
on the judgment in the case of I.S. Sikandar (Dead) by Lrs. vs.
K. Subramani & Ors. reported in (2013) 15 SCC 27 wherein it
is held that the plaintiff is required to prove the fact that right
from the date of execution of agreement to sell till the date of
passing the decree he is ready and has always been willing to
perform his part of the contract. Reliance is placed on the
judgment in the case of Ritu Saxena vs. J.S. Grover & Anr.
reported in (2019) 9 SCC 132 wherein, the Apex Court has
noted about the capacity of the party to pay by way of a
documentary evidence. Reliance is also placed on the
judgments in the cases of Vijaykumar & Ors. vs. Omprakash
reported in (2019) 17 SCC 429; C.S. Venkatesh vs. A.S.C.
Murthy reported in (2020) 3 SCC 280; U.N.Krishamurthy
(since deceased) Thr. Lrs. vs. A.M.Krishnamurthy reported in
(2023) 11 SCC 775. It is submitted that readiness that
includes capacity, is not established by the plaintiffs as per
the provisions of clause (c) of section 16 of the Act of 1963.
Proving of both the elements is must and even if one is
satisfied, it is not enough for grant of relief of specific
performance. In the case on hand, there are no documents
worth the name produced for proving the capacity.
10. Mr.Shalin Mehta, learned Senior Counsel in rejoinder
submitted that there was no obligation on the part of the
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plaintiffs to obtain the NA permission and it merely refers to
incurring the expenses and hence, it cannot be said that a
breach was committed by the plaintiffs. It was all throughout
a stand taken that both the plaintiffs are ready and willing to
perform their part of the contract. Clearly, the defendants
never challenged the readiness and willingness on the part of
the plaintiffs, which means that they had no doubt about the
capacity of the plaintiffs. Section 16(c) speaks about “essential
terms of the contract”. In the absence of any doubt raised or
challenged, it was not correct on the part of the learned Judge
to have concluded that the plaintiffs have not produced any
evidence.
10.1 It is further submitted that it is the case of the
defendants that the agreement to sell was read over and was
discussed with the son. It is submitted that the agreement to
sell was cancelled on the ground of technicality but that
reason is not coming forth from the evidence. The allegation
that the agreement to sell was executed by deception, then
there were two witnesses and the Registrar and no one is
examined. It is mere say of the son and absolute false
assertion raised by him. Infact, it is discernible from the cross-
examination that the defendants had no intention to perform
their part of the contract. As regards the contention of
cancellation of the agreement to sell and it not being
challenged, it is submitted that one is to see the conduct and
the oral evidence of the defendants, and it would clearly borne
out that multiple theories are advanced adopting inconsistent
stand, whereas, the plaintiffs were consistent in their stand
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and were not in default.
Re: Submissions and counter submissions in Cross-
Objection no. 155 of 2005.
11. Having made submissions on preliminary objections so
also the merits, the learned Counsel have also made further
submissions in connection with the Cross-Objection no. 155 of
2005 filed by the defendants raising the bar of Order II Rules
2 and 3 of the Code.
12. Mr.Mehul Shah, learned Senior Counsel submitted that
issue no. 6A framed in the Civil Suit was whether the suit is
barred under Order II Rules 2 and 3 of the Code as it provides
that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action.
When the first suit was filed, the cause was available to the
plaintiffs to pray for decree for specific performance as the
cause of action had already arisen at the relevant point of
time. In the Regular Civil Suit no. 399 of 1990, the plaintiffs,
have alleged breach and in paragraph 6, the aspect of
readiness and willingness is touched. Moreover, in paragraph
7, what is stated is issuance of notice and inaction on the part
of the defendants in not performing the terms of the
agreement. Hence, the pleadings are for specific performance
coupled with the cause of action of default and non-
performance. Therefore, on the basis of the averments and the
cause of action, the plaintiffs could have prayed for the reliefs
for specific performance; especially, in view of the
letters/notices dated 31.03.1990 (Exh.51), 11.04.1990
(Exh.52) while the suit was filed on 27.06.1990. It is
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submitted that by letter dated 11.04.1990-Exh.52 the
defendants not only denied the specific performance but
cancelled the agreement to sell. Therefore, when the Regular
Civil Suit no. 399 of 1990 was filed, not only the denial but,
there was something more i.e. the cancellation, despite which,
the plaintiffs did not take the leave from the Court and all
what the plaintiffs did was to issue a notice dated 26.06.1990
extending the time limit upto 31.08.1990.
12.1 It is next submitted that in the Civil Suit, the averments
are almost identical alleging the intention on the part of the
defendants not to perform their part of the contract. The
cause of action is identical and the base is parties agreeing for
the extension. Under the circumstances, Order II Rule 2
stands attracted. Reliance is placed on the judgment in the
case of Virgo Industries (Eng.) Pvt. Ltd. vs. Venturetech
Solutions Pvt. Ltd. reported in (2013) 1 SCC 625 for the
proposition that omission to claim one out of many reliefs that
could have been claimed in the suit, filing of subsequent suit
on the same cause of action is barred. Reliance is also placed
on the judgment in the case Vurimi Pullarao S/o
Satyanarayana vs. Vemari Vyankata Radharani W/o
Dhankoteshwarrao & Anr. reported in (2020) 14 SCC 110. In
the said case the Apex Court has held and observed that
omission to sue for all the reliefs without the leave of the
Court, subsequent suit for such reliefs would be barred under
Order II Rule 2.
13. Mr.Shalin Mehta, learned Senior Counsel, submitted
that the intention of the defendants was not clear which is
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substantiated by the oral agreement. It is further submitted
that in the Regular Civil Suit no. 399 of 1990, the defendants
have not clearly evinced their intention of not performing the
contract. It is well settled that in such an eventuality
pleadings and factual matrix are to be considered in depth
and if there is any doubt, giving the benefit would not be in
the right earnest, inasmuch as, plea regarding breach of
Order II Rule 2 can be entertained only when there is a crystal
clear case made out.
Re:Discussion
14. Having heard the learned Counsel appearing for the
respective parties and having perused the record including
the records and proceedings made available, central to the
issue is non-maintainability of the captioned appeal, it being
barred by principle of res judicata as the challenge laid by the
plaintiffs is limited qua the denial of specific performance.
Furthermore, the contention is raised about the appeal having
been abated for, all the heirs of plaintiff no. 2 and two of the
defendants who are not brought on the record. One of the
contentions raised is that the issue of res judicata is an issue
of jurisdiction and if is decided in favour of the party raising
it, it would oust the jurisdiction of the court.
15. In this regard, it is pertinent to note the settled
proposition of law that plea of res judicata is a plea of law and
it concerns the jurisdiction of the Court. Therefore, relevant
would be judgment of the Apex Court in the case of
Pandurang Dhondi Chougule & Ors. vs. Maruti Hari Jadhav &
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Ors.(supra), wherein in paragraph 10, it is observed thus:
“10. The provisions of Section 115 of the Code have been
examined by judicial decisions on several occasions. While
exercising its jurisdiction under Section 115, it is not
competent to the High Court to correct errors of fact however
gross they may, or even errors of law, unless the said errors
have relation to the jurisdiction of the court to try the dispute
itself. As clauses (a), (b) and (e) of Section 115 indicate, it is
only in cases where the subordinate court has exercised a
jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested, or has acted in the exercise of its
jurisdiction illegally or with material irregularity that the
revisional jurisdiction of the High Court can be properly
invoked. It is conceivable that points of law may arise in
proceedings instituted before subordinate courts which are
related to questions of jurisdiction. It is well settled that a plea
of limitation or a plea of res judicata is a plea of law which
concerns the jurisdiction of the court which tries the
proceedings. A finding on these pleas in favour of the party
raising them would oust the jurisdiction of the court, and so,
an erroneous decision on these pleas can be said to be
concerned with questions of jurisdiction which fall within the
purview of Section 115 of the Code. But an erroneous decision
on a question of law reached by the subordinate court which
has no relation to questions of jurisdiction of that court, cannot
be corrected by the High Court under Section 115.”
16. It is true that it is in connection with section 115 of the
Code but it is a settled proposition of law that the plea of
limitation or a plea of res judicata is a plea of law concerning
the jurisdiction of the Court and if finding on the plea is given
in favour of the party raising it, it would oust the jurisdiction
of the Court. Therefore, this court proposes to address the
above referred issue of res judicata and maintainability of the
captioned appeal, at the threshold. If the captioned appeal is
found to be not maintainable, the Court need not adjudicate
upon other peripheral issues.
17. Pertinently, the Regular Civil Suit no. 399 of 1990 was
filed by the plaintiffs seeking permanent injunction against
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the defendants on apprehension that the defendants might
dispose of the lands in question. Subsequent thereto, the
plaintiffs also filed the Civil Suit seeking specific performance
of the agreement to sell showing the readiness and
willingness to pay the remainder amount. It is not in dispute
that both, the Regular Civil Suit no. 399 of 1990 and the Civil
Suit, were consolidated. In the Regular Civil Suit no. 399 of
1990, three issues were formulated while, in the Civil Suit
seven issues were formulated. The controversy revolves
around issue no. 1 and issue nos. 3 and 4 of the Regular Civil
Suit no. 399 of 1990 and the Civil Suit respectively. The above
issues were decided together and were answered in the
negative. For ready reference, issue no. 1 of Regular Civil Suit
no. 399 of 1990 and issue nos. 3 and 4 of the Civil Suit are
reproduced hereinbelow:
“Regular Civil Suit no. 399 of 1990:
Issue no. 1 – Whether plaintiffs prove that the defendants have
committed the breach of the terms of the Banakhat dated
1.6.1989?
Civil Suit:
Issue no. 3 – Whether plaintiffs prove that they were ready &
willing to pay the remaining sale amount to the defendants as
per the terms & conditions of the Banakhat?
Issue no. 4 – Whether the plaintiffs prove that the defendants
have failed to comply with the terms and conditions of the
Banakhat?”
18. In view of the above, it is sought to be contended by Mr.
Mehul Shah, learned Senior Counsel, inter alia, that in the
absence of a separate appeal filed by the plaintiffs against the
judgment and decree passed in Regular Civil Suit no. 399 of
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1990, the findings in the impugned judgment would operate
as res judicata for the reason that the plaintiffs allowed the
decree passed in Regular Civil Suit no. 399 of 1990 to become
final and all the findings stood confirmed. If the captioned
appeal were to be allowed, resultant effect would be that
there would be two inconsistent decrees on the very same
evidence and facts. First, the decree concluding that there is
no breach on the part of the defendants but the plaintiffs; and
second, if the request of the plaintiffs is accepted it would
mean that the plaintiffs are not in breach but the defendants.
19. As against this, Mr.Shalin Mehta, learned Senior
Counsel, inter alia, has submitted that the objection cannot be
allowed to be raised at this juncture, as all throughout, no
objection was ever raised as regards the maintainability of the
captioned appeal. It is submitted that two suits were filed and
the question substantially in issue in both the suits is not
common at all, considering the fact that one suit is for
permanent injunction and another for specific performance.
20. The genesis for raising the preliminary objection is
owing to the limited challenge to the extent to which, the suit
of the plaintiffs seeking specific performance is dismissed.
Paragraph 2 of the captioned appeal memo reads thus:
“2. That by the judgment and the order dated 18.03.2000,
the learned Judge is pleased to dismiss the suit in part. That
being aggrieved by the said judgment and decree to the extent
to which the suit of the plaintiffs is dismissed, the appellants
most humbly beg to prefer this appeal on the following main
amongst the other ground:”
21. Therefore, this limited challenge has given rise to the
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contention as regards the maintainability of the captioned
appeal on the ground that it is barred by the principle of res
judicata as contained in section 11 of the Code inasmuch as,
the impugned judgment to the extent it is not challenged
would take the colour of “former suit” between the same
parties and the matter was directly and substantially in issue
in the former suit between the same parties. Before adverting
to the provision of section 11, a brief reference of section 96
of the Code would be necessary as it provides filing of an
appeal from original decree passed by court. As a necessary
corollary, it follows that an appeal shall lie against every
decree if the party/s is/are aggrieved. Section 96 of the Code
is reproduced hereinbelow for ready reference:
“96. Appeal from original decree. –
(1)Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal
shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized to hear appeals
from the decisions of such Court.
(2)An appeal may lie from an original decree passed ex parte .
(3)No appeal shall lie from a decree passed by the Court with
the consent of parties.
(4)No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of Small
Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten thousand rupees.]”
22. Bare perusal of the provision suggests that section 96 of
the Code enumerates filing of appeal from original decree. It
provides that an appeal shall lie from every decree passed by
any Court exercising original jurisdiction to the Court
authorised to hear appeals from such decisions. Therefore, as
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stated hereinabove, the requirement contained in section 96
of the Code is filing of appeal from every decree. In the case
on hand, it is nobody’s case that there was a common decree
passed. Clearly, in the case on hand, together with the
impugned judgment, decree was drawn vide Exh. 205 in Civil
Suit. The limited challenge in the captioned appeal is against
the impugned judgment and decree, both, dated 18.03.2000.
Similarly, decree appears to have been drawn in Regular Civil
Suit no. 399 of 1990; however, there is no appeal filed against
the separate decree drawn in Regular Civil Suit no. 399 of
1990.
23. In light of this omission, the provision of section 11 of
the Code becomes a central issue. For ease of reference, the
said provision is extracted below:
“Section 11. Res Judicata.- No Court shall try any suit or
issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit
between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in a
Court competent to try such subsequent 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 a suit in question whether
or not it was instituted prior thereto.
Explanation II.–For the purposes of this section, the
competence of a Court shall be determined 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, expressly or impliedly, by the other.
Explanation IV.–Any matter which might and ought to have
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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 aright 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 proceeding and a former
proceeding for the execution of that decree.
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 a subsequent suit,
notwithstanding 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.”
24. Section 11 provides that no Court shall try any suit or
any issue in which the matter directly and substantially in
issue was directly and substantially in issue in a former suit
between the same parties. Further requirement is about the
suit being finally decided by the Court. The provision
highlights that the suit and the issue for which the matter
directly and substantially in issue is also directly and
substantially in issue in the suit, already decided. The issue
therefore, is as to how the expression “former suit” is to be
construed.
25. In the case of Shri Gangai Vinayagar Temple vs.
Meenakshi Ammal (supra), similar such contention was raised
and to understand the controversy involved therein, a brief
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reference of the facts would be necessitated. The ambit and
sweep of the principle of res judicata was at the centre of
controversy. The facts were that the land was taken on lease
by the tenants and were permitted to construct cinema
theatre. One of the tenants passed away, that led to the
execution of fresh lease deed for a period of fifteen years
between the tenants and the trustees. Upon the death of the
tenant, his wife continued as tenant along with her children
and it is thereafter that the trustees sold away the property to
some third party. The tenant filed O.S. no. 5 of 1978
challenging the sale of the suit land on the ground of
infraction of the procedure for transferring of the suit
property, apprehending their dispossession. Subsequent
thereto, the trustees filed two suits O.S. no. 6 of 1978 and
O.S. no. 7 of 1978 claiming arrears of rent from the tenants.
The appellant therein has raised a contention that the
respondent tenants of the property are barred from
challenging the finding of the trial Court, they being barred
from principle of res judicata. O.S. no. 5 of 1978 by the
tenants came to be dismissed, O.S. no. 6 of 1978 by the
tenants was partially decreed and O.S. no. 7 of 1978 was
dismissed on the ground that claim of arrears of rent was not
tenable. The tenants did not file any appeal against the
dismissal of the O.S. no. 5 of 1978 and O.S. no. 7 of 1978.
While the trustees also did not file any appeal against the
dismissal of O.S. no. 7 of 1978.
26. Pertinently, all the three suits were decided after
recording common evidence by common judgment and
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pursuant thereto, three different decrees were drawn. In O.S.
no. 5 of 1978, the issue formulated was :
“Whether the suit property is not the personal property of
Sethurama Chettiar and whether the plaintiffs are not
estopped from questioning the title of the landlord or
vendors?”
While in O.S. no. 6 of 1978 and O.S. no. 7 of 1978, issue nos.
2 and 3 were:
Issue no. 2 -“Whether the entire suit property (‘a’ and ‘b’
schedule) in possession of the defendants are covered by the
lease deed dated 8.11.1967 or whether there was any
subsequent oral agreement in respect of ‘B’ schedule property
alone and if so, what is its lease amount?”
Issue no. 3.-“Whether the suit property belongs to a public
temple governed by the Act. If so, whether the suit is
maintainable for want of sanction under Section 26 of Hindu
Religious Institutions Act?”
27. The Apex Court, has held and observed that where
common judgment has been delivered in cases in which
consolidation orders have specifically been passed, the filing
of a single appeal leads to the entire dispute becoming sub-
judice once again. It has been further observed that where
common issues have been framed and common trial has been
conducted, the losing party must file an appeal in respect of
all adverse decrees founded even on partially adverse or
contrary speaking judgments. Paragraphs 27, 29 to 31 are
reproduced hereinbelow for ready reference:
“27. Procedural norms, technicalities and processual 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 ordersPage 41 of 63
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are passed by virtue of the bestowal of inherent powers on the
courts by Section 151 CPC, as clarified by this Court in
Chitivalasa Jute Mills v. Jaypee Rewa Cementl. In the instance
of suits in which common issues have been framed and a
common trial has been conducted, the losing party must file
appeals in respect of all adverse decrees founded even on
partially adverse or contrary speaking judgments. While so
opining we do not intend to whittle down the principle that the
appeals are not expected to be filed against every 9
inconvenient or disagreeable or unpropitious or unfavourable
finding or observation contained in a judgment, but that this
can be done by way of cross-objections if the occasion arises.
The decree not assailed thereupon metamorphoses into the
character of a “former suit”. If this is not to be so viewed, it
would be possible to set at naught a decree passed in Suit A by
only challenging the decree in Suit B. Law considers it an
anathema to allow a party to achieve a result indirectly when it
has deliberately or negligently failed to directly initiate
proceedings towards this purpose. Laws of procedure have
picturesquely been referred to as handmaidens to justice, but
this does not mean that they can be wantonly ignored because,
if so done, a miscarriage of justice inevitably and inexorably
ensues. The statutory law and the processual law are two sides
of the judicial drachma, each being the obverse of the other. In
the case in hand, had the tenant diligently filed an appeal
against the decree at least in respect of OS No. 5 of 1978, the
legal conundrum that has manifested itself and exhausted so
much judicial time, would not have arisen at all.
29. We have already indicated above that, in our opinion, if OS
No. 5 of 1978 was merely a suit for injunction simpliciter, since
the defendants therein (both the trustees as well as the
transferees) had posited in their respective written statements
that they had no intention to dispossess the plaintiff tenant,
that suit ought not to have been dismissed but should have
been decreed. We have also laid emphasis on the fact that the
tenant had made a specific and pointed assertion in the plaint
that the transfer of the demised land by the Trust to the
transferees was not in consonance with Section 26 of the
Puducherry Hindu Religious Institutions Act, 1972. We have
also noticed the fact that this was an important objection
raised by the tenant in their written statement in OS No. 6 of
1978 and OS No. 7 of 1978. It seems to be incongruous to us to
consider ownership of the demised premises to be irrelevant in
OS No. 5 of 1978 but nevertheless constitute the kernel or
essence or fulcrum of the disputes in OS No. 6 of 1978 and OS
No. 7 of 1978. The dialectic adopted by the Court must remain
steadfastly constant. if title was irrelevant so far as a claim for
injunction simpliciter, it was similarly so in relation to the
party having the advantage of Section 1l6 of the Evidence Act
in respect of its claim for arrears of rent from its tenant.
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30. It would not be logical to overlook that the pleadings on
behalf of the tenant were common in all three suits, and that
issues on this aspect of the dispute had been claimed by the
tenants in all the three suits. On a holistic and comprehensive
reading of the pleadings of the tenant in all the three suits, it is
inescapable that the tenant had intendedly, directly and
unequivocally raised in its pleadings the question of the title to
the demised premises and the legal capacity of the trustees to
convey the lands to the transferees. This is the common thread
that runs through the pleadings of tenant in all three suits. It is
true that if OS No. 5 of 1978 was a suit for injunction
simpliciter, and in the wake of the stance of the trustees and
transferees that no threat had been extended to the tenants
regarding their ouster, any reference or challenge to the
ownership was wholly irrelevant. But the ownership issue had
been specifically raised by the tenant, who had thus caused it
to be directly and substantially in issue in all three suits. So far
as Suits Nos. 6 and 7 of 1978 are concerned, they were also
suits simpliciter for the recovery of rents in which the defence
pertaining to ownership was also not relevant; no substantial
reason for the tenant to file an appeal in OS No. 6 of 1978 had
arisen because the monetary part of the decree was relatively
insignificant. Obviously, the tenants’ resolve was to make the
ownership the central dispute in the litigation and in these
circumstances cannot be allowed to equivocate on the aspect
of ownership. Logically, if the question of ownership was
relevant and worthy of consideration in OS No. 6 of 1978, it
was also relevant in OS No. 5 of 1978.
31. Viewed in this manner, we think it is an inescapable
conclusion that an appeal ought to have been filed by the
tenant even in respect of OS No. 5 of 1978, for fear of inviting
the rigours of res judicata as also for correcting the “dismissal”
order. In our opinion, the tenant had been completely non-
suited once it was held that no cause of action had arisen in its
favour and the suit was “dismissed”. Ignoring that finding and
allowing it to become final makes that conclusion impervious
to change. In Sheoparsan Singh v. Ramnandan Prasad Singh,
the Privy Council opined
“Res judicata is an ancient doctrine of universal application
and permeates every civilized system of jurisprudence. This
doctrine encapsulates the basic principle in all judicial
systems which provide that an earlier adjudication is
conclusive on the same subject-matter between the same
parties.”*
The raison d’être and public policy on which res judicata is
predicated is that the party who has raised any aspect in a
litigation and has had an issue cast thereon, has lead evidence
in that regard, and has argued on the point, remains bound by
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the curial conclusions once they attain finality. No party must
be vexed twice for the same cause; it is in the interest of the
State that there should be an end to litigation; a judicial
decision must be accepted as correct in the absence of a
challenge. The aspect of law which now remains to be
considered is whether filing of an appeal against a common
judgment in one case, tantamounts to filing an appeal in all the
matters.”
28. Similarly, in the case of Darayas Bamanshah Medhora
vs. Nariman Bamanshah Medhora(supra), the issue before this
Court was filing of single appeal from one of the decrees
arising from a common judgment and its maintainability in
view of the principle of res judicata. The Division Bench
considered the definition of ‘judgment’ as well as ‘decree’, and
the distinction between both was examined and it is noted
that the judgment constitutes the opinion of the court wherein
it encompasses the pleadings of the parties, the issues, the
evidence led by the respective parties, the interplay of
different pieces of evidence, the conclusions drawn and the
findings of fact recorded. It also held that the judgment
reflects merely the justification of the Court for passing the
decree. The decree has been explained to mean that it
crystallizes the rights in controversy between the parties, on
the basis of the judgment. Notably, a judgment and a decree
are not phrases or concepts, which can neither be used
interchangeably nor do the two concepts overlap each other.
Considering the scope of section 96 of the Code, it is observed
that section 96 enumerates an appeal only from a decree, and
by necessary implication, not from a judgment. Reference is
made to the judgment of the Apex Court in the case of
Premier Tyres Ltd. vs Kerala State Road Transport
Corporation(supra) wherein, the Apex Court has concluded
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that when there were different suits filed, different appeals
had to be filed. Paragraph 4 of the said judgment has been
emphasized wherein the Apex Court has laid down the
proposition that where an appeal arising out of connected
suits is dismissed on merits, the other cannot be heard and
has to be dismissed. The effect of non-filing of the appeal
against the judgment and decree has been held to be attaining
finality and the finality can be taken away only in accordance
with law.
29. In the case before this court, the facts were such that
two suits were filed by the plaintiffs and the defendants. The
reliefs prayed for by the plaintiffs and defendants in their
respective suits were similar. Both the suits were consolidated
and were directed to be tried together. Common issues were
raised by leading common evidence. The suits were decided
by the common judgment. One suit was dismissed and the
another was allowed and thereby, the common judgment
resulted into two separate decrees. Various judgments of the
Apex Court were surveyed by this Court and while referring to
the judgment in the case of Premier Tyres Ltd. vs Kerala State
Road Transport Corporation(supra), this Court in paragraph
12 to 18 has observed thus:
“12. In the case of Sheodan Singh v. Daryao Kunwar, reported
in AIR 1966 SC 1332, the Supreme Court specifically found
that where there were two suits having common issues, and
the suits were decided by the trial Court on merits which
resulted in two appeals therefrom, and one of the appeals was
dismissed (although not on merits), the decision of the appeal
Court will be res judicata. It is pertinent to note that in the said
decision, the Full Bench decision in the case of Mt. Lachhmi
(supra) has been specifically considered, as also the Supreme
Court decision in the case of Narhari v. Shanker, reported inPage 45 of 63
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AIR 1953 SC 419.
12.1 The aforesaid decision of the Supreme Court viz. Sheodan
Singh, has been referred to, considered and relied upon by the
Supreme Court in its subsequent decision in the case of
Premier Tyres Limited v. The Kerala State Road Transport
Corporation, reported in AIR 1993 SC 1201. This decision also
takes into consideration the earlier decision of the Supreme
Court in the case of Ramagya Prasad Gupta v. Murli Prasad,
reported in AIR 1974 SC 1320, and distinguishes the earlier
decision of the Supreme Court in the case of Narhari v.
Shanker, reported in AIR 1953 SC 419.
12.2 In the said decision viz. Premier Tyres Ltd. (supra) there
were two suits which were connected and tried together
inasmuch as the nature of the dispute in both the suits were
same. The issues framed were also common. In this case, the
appellant did not file any appeal against the dismissal of the
suit for part of its claim, but an appeal was filed against the
decree granted in favour of the respondent in the appeal in the
suit filed by it. The High Court of Kerala in its decision
dismissed the appeal of the appellant as barred by res judicata
since the finding recorded in the connected suit had become
final inasmuch as the same was not challenged in the appeal.
In the appeal before the Supreme Court it was urged, as is
urged in the appeal before us, that both the suits were
connected and decided by common order, and therefore, the
issues in neither suit can be said to have been decided in a
former suit, and consequently the basic ingredient of Section
11 of C.P.C. would not be satisfied. This submission was sought
to be supported by the earlier decision of the Supreme Court in
the case of Narhari v. Shanker (supra). However, the Supreme
Court observed that the decision in the case of Narhari v.
Shanker (supra) has been distinguished in the case of Sheodan
Singh (supra), inasmuch as it related to only one suit, and
therefore, the observations extracted therefrom were not
relevant in a case where more than one suit was decided by a
common order. The Supreme Court then observed that in the
present case before it, there were different suits from which
different appeals had to be filed. In paragraph 4 of the said
decision the Supreme Court therefore concluded that where an
appeal arising out of connected suits is dismissed on merits,
the other cannot be heard and has to be dismissed.
12.3 The question which was also considered by the Supreme
Court was as to what happens where no appeal is filed, as in
the case before the Supreme Court from the decree in the
connected suit. The Supreme Court specifically found that the
effect of non-filing of an appeal against a judgment or decree is
that it becomes final. This finality can be taken away only in
accordance with law. The same consequences follow when a
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judgment or decree in a connected suit is not appealed from.
These observations of the Supreme Court, which were further
fortified by the findings recorded by it in Para 6 of the said
decision, are as under :
“Thus, the finality of finding recorded in the connected
suit, due to non-filing appeal, precluded the Court from
proceeding with appeal in other suit.”
12.4 In the context of the observations made by the Supreme
Court in the said decision, and particularly the observations in
Paras 4 and 6 of the said decision, we are also of the view that
the Supreme Court has, to some extent, departed from the
earlier principles of relying and referring to only the principles
of res judicata, by also considering and incorporating the
principles of acquiescence and issue estoppel. As discussed
hereinabove, the principle of acquiescence and issue estoppel
are also relevant and can be applied to the consideration of
examining the legality and validity of the contentions raised for
and against the maintainability of such an appeal.
13. The decision of the Supreme Court in the case of Ram
Prakash v. Charan Kaur, reported in AIR 1997 SC 3760 : 1997
(9) SCC 543 is also relevant and pertinent.
13.1 This decision is based on facts which are identical to the
facts before us. The Supreme Court specifically held that
where the findings in one suit had been allowed to become
final in the absence of an appeal, an appeal filed against the
findings in another suit would be barred by principles of res
judicata.
13.2 In Para 2 of the said decision the Supreme Court observed
as under :
“2. It would be obvious that since the claims of the
petitioner and the respondents have arisen from the
same cause of action and the finding of the appellate
Court that damages had accrued to the respondents due
to misfeasance or malfeasance having been allowed to
become final, the decree which is subject-matter of the
special leave petition cannot be assailed. The self-same
question was directly in issue and was the subject-matter
of both the suits. The same having been allowed to
become final, it cannot be gone into since the same had
attained finality, the petitioner having not filed any
appeal against the appeal dismissing the suit. In view of
this situation, the High Court was right in concluding
that the decree of dismissal of the suit against the
petitioner would operate as res judicata under SectionPage 47 of 63
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11, C.P.C. in the appeal against which the petitioner has
filed the second appeal.”
13.3 We may also observe in passing that in the present
decision the Supreme Court has applied not only the principles
of res judicata, but has also decided the facts from the
alternate perspective, by applying the principles of
acquiescence and issue estoppel.
14. The decision of the Supreme Court in the case of Badri
Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338 was
also sought to be relied upon, which sought to be distinguished
from the decision in the case of Narhari v. Shanker (supra).
However, the latter has indirectly been approved by the
Supreme Court. In any case, this decision i.e. Badri Narayan
has been referred to and relied upon by the Supreme Court in
the case of Premier Tyres Limited (supra), and therefore, the
same does not require any lengthy or independent discussion.
15. The same reasoning applies to the decision of the Supreme
Court in the case of Ramagya Prasad v. Murli Prasad, AIR 1974
SC 1320, which has been considered and discussed in the case
of Premier Tyres Limited (supra).
16. A reference was also made to the decision of the Supreme
Court in the case of Managing Director v. K. Ramachandra
Naidu, reported in AIR 1995 SC 316. In our opinion, this
decision would not have any application to the facts inasmuch
as the question before the Supreme Court was on the facts
where both me parties had filed separate appeals from a
common judgment in a writ petition, on which facts it was
found that the dismissal of the appeal filed by one party on the
ground of limitation, would not adversely affect the appeal filed
by the other party which was within limitation. Obviously, the
case before the Supreme Court was on consideration of two
appeals filed by two separate parties arising from the same
judgment. Here, the case is entirely different, where the
appellant, though adversely affected by both the decrees, has
chosen to challenge only one of them,
17. Reliance was also placed upon a decision of the Madras
High Court in the case of Panchanada Velan v. Vaithinatha
Sastrial, reported in ILR 29 Madras 333. In our opinion, this
decision does not require any detailed discussion inasmuch as
the same has been referred to and discussed in the earlier
decision of the Supreme Court in the case of Sheodan Singh
(supra).
18. In the premises aforesaid, we are of the opinion that the
present appeal is not maintainable and is consequently
dismissed with no order as to costs. ”
30. As heavy reliance was placed by this Court on the
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judgment in the case of Premier Tyres Ltd. vs Kerala State
Road Transport Corporation(supra), a brief reference of the
same would be profitable. Paragraphs 3 to 6 are reproduced
hereinbelow for ready reference:
“3. The validity of this finding has been assailed by Shri Raja
Ram Aggarwal, the learned Sr. Advocate appearing on behalf
of the appellant. It is urged that Section 11 of the Civil
Procedure Code does not apply as such. According to him since
both the suits were connected and decided by a common order
the issue in neither suit can be said to have been decided in a
former suit. Therefore, the basic ingredient of Section 11 of
the C.P.C. was not satisfied. The submission derives some
support from observations in Narhari v. Shanker , that, ‘even
when there are two suits it has been held that decision given
simultaneously cannot be a decision in the former suit’. But
this decision was distinguished in Sheodan Singh v. Smt.
Daryao Kunwar 1966 SC 1332, as it related to only one suit,
therefore, the observations extracted above were not relevant
in a case where more than one suit were decided by a common
order. The Court further held that where more than one suit
were filed together and main issues were common and appeals
were filed against the judgment and decree in all the suits and
one appeal was dismissed either as barred by time or abated
then the order operated as res judicata in other appeals, ‘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 therefore fail’. In Shri Ramagya Prasad Gupta v. Sri
Murli Prasad , an effort was made to get the decision in
Sheodan Singh (supra) reconsidered. But the Court did not
consider it necessary to examine the matter as the subject
matter of two suits being different one of the necessary
ingredients for applicability of Section 11 of the C.P.C. were
found missing.4. Although none of these decisions were
concerned with a situation where no appeal was filed against
the decision in connected suit but it appears that where an
appeal arising out of connected suits is dismissed on merits the
other cannot be heard, and has to be dismissed. The question
is what happens where no appeal is filed, as in this case from
the decree in connected suit. Effect of non filing of appeal
against a judgment or decree is that it become final. This
finality can be taken away only in accordance with law. Same
consequences follows when a judgment or decree in aPage 49 of 63
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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 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, ‘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 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.
6. Thus the finality of finding recorded in the connected suit,
due to non filing appeal, precluded the Court from proceeding
with appeal in other suit. In any view of the matter the order of
the High Court is not liable to interference.”
31. The appellant therein had filed the suit for recovery of
certain amount due to it, against the respondent-corporation
therein. The respondent-corporation also filed a suit for
recovery of certain amount paid by it. Issues framed were
common and both the suits were tried together and were
partly decreed. The appellant therein did not file any appeal
against dismissal of the suit in part of its claim but, the appeal
was filed against the decree granted in favour of the
respondent-corporation. The appeal of the appellant before
the High Court was dismissed as it was barred by principle of
res judicata as the findings recorded in connected suit that
the appellant was entitled to charge and collect, had become
final. The decision of the High Court was that the condition
that there should have been decision in a former suit to give
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rise to res judicata in a subsequent suit was satisfied;
rejecting the contention that there was no former suit in
place.
32. Yet in another decision, in the case of Lonankutty vs.
Thomman(supra) the expression “former suit” had fallen for
consideration and the Apex Court has held that two suits were
filed one by appellant therein against the respondents for
perpetual injunction and another by the respondents therein
for an injunction restraining the appellant from trespassing on
the land constructed by them. Both the suits were tried and
disposed of separately. The suit filed by the appellant was
partly allowed granting injunction against the respondents.
The suit filed by the respondents was also partly allowed.
Appeal was filed so also cross-appeal by the appellants and in
the suit filed by the respondents, also appeal and cross-appeal
were filed. Since all the four appeals involved the common
question they were heard together and disposed of vide
common judgment. All the appeals were dismissed and the
decrees passed by the trial court were confirmed. No appeal
was preferred by either side against the decree passed by the
District Court or in the appeal which arose out of the
respondent’s suit. But second appeal was filed by the
respondents against the decree which arose out of the decree
passed by the trial court and the suit filed by the appellant.
The contention was raised by the appellant of res judicata
which was rejected on the ground that in four appeals, there
is only one judgment and one decree. It was for the
respondents to file one appeal and could challenge the
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findings recorded against them. In the remand, the matter
was disposed of on merits and the appeal filed by the
respondents against the decree passed by the trial court in
the appellant’s suit was dismissed. In the proceedings before
the High Court the appellant once again raised a plea of res
judicata but it was rejected on the ground that judgment
remanding the matter had attained finality. Before the Apex
Court, the contention was raised by the appellant that the
appeal was barred by res judicata and the High Court could
not have tried and decided the issue. While dealing with the
said contention, in paragraph 15, the Apex Court had taken
note that the contention is well founded and in paragraph 19,
it is observed that as the appeal was filed before the High
Court only against the decree passed by the District Court
which arose out of the decree passed by the trial court in the
appellant’s suit, thus the decision of the District Court
rendered in the appeal arising out of the respondents’ suit
became final and conclusive. That decision, not having been
appealed, could not be reopened in the further appeal. It has
been held and observed that the issue was heard and finally
decided by the District Court in the proceedings between the
same parties and the decision was rendered before the High
Court decided in appeal. The decision of the District Court
was finally decided before the High Court disposing of the
second appeal. The decision was therefore one in a “former
suit” within the meaning of section 11. Paragraphs 18 to 22
are reproduced hereinbelow for ready reference:
“18. Each party being partly aggrieved by both the decrees,
each filed an appeal in the District Court against the twoPage 52 of 63
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decrees. The learned Subordinate Judge, sitting in appeal, had
thus 4 appeals before him, 2 arising from each suit. He
confirmed the decrees under appeal and dismissed all the
appeals.
19. Respondents did not file any further appeal against the
decree passed by the District Court in the appeals arising out
of their suit. They filed a Second Appeal in the High Court,
only as against the decree passed by the District Court in A.S.
66 of 1958 which arose out of the decree passed by the trial
court in the appellant’s suit. Thus, the decision of the District
Court rendered in the appeal arising out of the respondents’
suit became final and conclusive. That decision, not having
been appealed against, could not be re-opened in the Second
Appeal arising out of the appellant’s suit. The issue whether
respondents had the easementary right to the flow of water
through the appellant’s land for fishing purposes was directly
and substantially in issue in the respondent’s suit. That issue
was heard and finally decided by the District Court in a
proceeding between the same parties and the decision was
rendered before the High Court decided the Second Appeal.
The decision of the District Court was given in an appeal
arising out of a suit, which though instituted subsequently,
stood finally decided before the High Court disposed of the
Second Appeal. The decision was therefore one in a “former
suit” within the meaning of section 11, Explanation 1, Civil
Procedure Code. Accordingly, the High Court was in error in
deciding an issue which was heard and finally decided in a
“former suit” and was therefore barred by res judicata.
20. The High Court in its judgment dated April 8, 1971
assumed wrongly that suit No. 666 of 1954 filed by the
appellant and suit No. 5 of 1954 filed by the respondents were
“originally disposed of by a common judgment”. They were not.
The appellant’s suit was disposed of by a judgment dated
September 20, 1957 while the respondents’ suit was disposed
of by a judgment dated October 11, 1958. Naturally, 2
separate decrees were drawn in the 2 suits and those decrees
gave rise to 4 cross-appeals, 2 from each suit.
21. In its remanding judgment dated July 8, 1964 by which
the plea of res judicata was repelled, the High Court relied
principally on the decision of this Court in Narhari v. Shanker.
That decision is in our opinion distinguishable because in that
case only one suit was filed giving rise to 2 appeals. A filed a
suit against B and C which was decreed. B and C preferred
separate appeals which were allowed by a common judgment,
but the appellate court drew 2 separate decrees. A preferred
an appeal against one of the decrees only and after the period
of limitation was over, he preferred an appeal against the other
decree on insufficient court-fee. The High Court held that APage 53 of 63
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should have filed 2 separate appeals and since one of the
appeals was time barred, the appeal filed within time was
barred by res judicata. This Court held that “there is no
question of the application of the principle of res judicata”,
because “When there is only one suit, the question of res
judicata does not arise at all”. This was put on the ground that
“where there has been one trial, one finding, and one decision,
there need not be two appeals even though two decrees may
have been drawn up.” In our case, here were 2 suits and since
the appellate decree in one of the suits had become final, the
issues decided therein could not be re-opened in the Second
Appeal filed against the decree passed in an appeal arising out
of another suit. This precisely is the ground on which Narhari’s
case was distinguished by this Court in Sheodan Singh v. Smt.
Daryao Kunwar. It was held therein that where the trial court
has decided 2 suits having common issues on the merits and
there are two appeals therefrom the decision in one appeal will
operate as res judicata in the other appeal.
22. The circumstance that the District Court disposed of the 4
appeals by a common judgment cannot affect the application of
section 11 because as observed in Badri Narayan Singh v.
Kamdeo Prasad Singh and Anr.,(1) even where 2 appeals arise
out of one proceeding and even if the appeals are disposed of
by a common judgment, the decision in that judgment may
amount to 2 decisions and not to one if the subject-matter of
each appeal is different. The case before us is stronger still for
the application of section 11 because the appeals filed in the
District Court arose not out of one proceeding but out of 2
different suits, one by the appellant and the other by the
respondents. The failure of the respondents to challenge the
decision of the District Court in so far as it pertained to their
suit attracts the application of section 11 because to the extent
to which the District Court decided issues arising in the
respondents’ suit against them, that decision would operate as
res judicata since it was not appealed against. “
33. From the above referred discussion and language
contained in section 11, filing of the cross-suits is not relevant
and what is relevant is “suits” or “issues” between the same
parties. Explanation (1) defines the expression “former suit”
as the suit which has been decided prior to the suit in
question irrespective of its institution.
34. Undisputably, the agreement to sell was the cause for
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filing the Regular Civil Suit no. 399 of 1990 as well as the
Civil Suit. Examining the nature of averments made therein,
it is clear that the plaintiffs made breach of the terms and
conditions of the agreement to sell, the fulcrum. Therefore,
the issue revolved around specific performance of the
agreement to sell in the Regular Civil Suit no. 399 of 1990.
Pertinently, both the Regular Civil Suit no. 399 of 1990 and
the Civil Suit share substantially the same cause of action, i.e.
the execution of the agreement to sell and the subsequent
events.
35. Discernibly, the application Exh.202 was preferred by
the learned Advocates appearing for the plaintiffs and the
defendants, inter alia, pointing out that the suits may be heard
together by clubbing them as the issues are common as well
as the evidence led by the parties. It is also indicated in the
application that in the Regular Civil Suit no. 399 of 1990 there
is no need and necessity to lead separate evidence or make
arguments. Accepting the request, order was passed below
application Exh.202, and the Civil Suit and the Regular Civil
Suit no. 399 of 1990 were consolidated. Apropos which, both
the suits were heard together and were disposed of by the
impugned judgment and as stated hereinabove, two separate
decrees were drawn. Exh.205 is the decree drawn in
connection with the Civil Suit and another decree is in
connection with the Regular Civil Suit no.399 of 1990.
Besides, one issue of Regular Civil Suit no.399 of 1990 and
two issues of Civil Suit, were as regards breach committed of
the terms and conditions of the agreement to sell, Exh.22.
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36. The controversy centres around issue no. 1 and issue
nos. 3 and 4 of the Regular Civil Suit no. 399 of 1990 and the
Civil Suit respectively. For sake of convenience, the issue no.
1 of Regular Civil Suit no. 399 of 1990 and issue nos. 3 and 4
of the Civil Suit are reproduced hereinbelow:
“Regular Civil Suit no. 399 of 1990:
Issue no. 1 – Whether plaintiffs prove that the defendants have
committed the breach of the terms of the Banakhat dated
1.6.1989?
Civil Suit:
Issue no. 3 – Whether plaintiffs prove that they were ready &
willing to pay the remaining sale amount to the defendants as
per the terms & conditions of the Banakhat?
Issue no. 4 – Whether the plaintiffs prove that the defendants
have failed to comply with the terms and conditions of the
Banakhat?”
37. The above referred issues were decided together.
Clearly, issue no. 1 of Regular Civil Suit no. 399 of 1990 and
issue no. 4 of the Civil Suit are decided in negative by the
impugned judgment. Issue no. 4 of the Civil Suit is akin to
issue no. 1 of the Regular Civil Suit no. 399 of 1990, that is,
breach or non-adherence of the terms and conditions of the
Banakhat i.e. the agreement to sell. The plaintiffs have filed
appeal only qua the denial of the specific performance in the
Civil Suit; but, no appeal is filed challenging the decree
passed in Regular Civil Suit no.399 of 1990. Perceptibly, the
matter directly and substantially in issue, was also directly
and substantially in issue in the former suit between the same
parties, wherein the decree is passed in the Regular Civil Suit
no.399 of 1990. Hence, in the absence of challenge to thePage 56 of 63
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decree drawn in Regular Civil Suit no. 399 of 1990, the
findings recorded in connection therewith, have attained
finality and would be “former suit” in terms of the language
contained in section 11 of the Code and thus, the captioned
appeal therefore, is barred by the principles of res judicata
and hence, not maintainable and is dismissed.
38. Another limb of submission of Mr. Shalin Mehta, learned
Senior Counsel is that in view of Order XLI Rule 33 power of
Court of appeal are wide enough and can be exercised even
when no appeal is filed against adverse decree or the issue
having attained finality for want of challenge. It is further
contended that if the controversy is still alive the court can
exercise the powers under Order XLI Rule 33 of the Code. As
against this, Mr.Mehul Shah, learned Senior Counsel, by
placing reliance on the judgment in the case of Banarasi vs
Ram Phal (supra), submitted that the object sought to be
achieved by conferment of such powers on the appellate
Court, is to avoid inconsistency, inequity or inequality in
reliefs granted to similarly placed parties.
39. Therefore, for ease of reference Order XLI Rule 33 is set
out hereinbelow:
33. Power of Court of Appeal. -The Appellate Court shall
have power to pass any decree and make any order which
ought to have been passed or made and to pass or make such
further or other decree or order as the case may require, and
this power may be exercised by the Court notwithstanding
that the appeal is as to part only of the decree and may be
exercised in favour of all or any of the respondents or parties,
although such respondents or parties may not have filed any
appeal or objection and may, where there have been decrees
in cross-suits or where two or more decrees are passed in one
suit, be exercised in respect of all or any of the decrees,Page 57 of 63
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although an appeal may not have been filed against such
decrees:
Provided that the Appellate Court shall not make any order
under section 35A, in pursuance of any objection on which the
Court from whose decree the appeal is preferred has omitted
or refused to made such order.
40. Clearly, Order XLI Rule 33 speaks about the powers of
the appellate court to pass any decree and make any order
which ought to have been passed or made, notwithstanding
that the appeal is as to part only of the decree and may be
exercised in favour of all or any of the respondents or parties,
although such respondents or parties may not have filed any
appeal or objection.
41. Therefore, relevant would be the judgment in the case of
Banarasi vs. Ram Phal (supra), wherein the Apex Court, in
paragraph 18 has referred to the judgment in the case of
Harihar Prasad Singh vs. Balmiki Prasad Singh reported in
(1975) 1 SCC 212. The scope of powers contained in Rule 33
has been succinctly discussed. Order XLI Rule 33 confers
wide and unlimited jurisdiction on Courts to pass a decree in
favour of a party who has not preferred any appeal; however,
there are certain well-defined principles in accordance with
which the jurisdiction is to be exercised. It has been held and
observed that normally a party who is aggrieved by a decree
should, if he seeks to escape from its operation, appeal
against it and if he fails to do so, no relief should ordinarily be
given to him under Order XLI Rule 33 of the Code.
Exceptions, inter alia, have been carved out namely necessity
to readjust the rights of the other parties as a result of
interference in favour of the appellant. Paragraphs 14 and 18
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to 21 are reproduced hereinbelow:
“14. The learned counsel for the respondent forcefully argued
that even in the absence of appeal preferred by the plaintiff or
cross objection taken by the plaintiff-respondent the Appellate
Court was not powerless to grant the decree which it has done
in exercise of the power conferred by Rule 33 of Order 41 of
the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which
have to be read necessarily together, are set out hereunder:
ORDER 41 Appeals from Original Decrees “33. Power of
Court of Appeal.-The Appellate Court shall have power to
pass any decree and make any order which ought to have
been passed or made and to pass or make such further or
other decree or order as the case may require, and this
power may be exercised by the Court notwithstanding
that the appeal is as to part only of the decree and may
be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not
have filed any appeal or objection and may, where there
have been decrees in cross-suits or where two or more
decrees are passed in one suit, be exercised in respect of
all or any of the decrees, although an appeal may not
have been filed against such decrees:
Provided that the Appellate Court shall not make any
order under section 35A, in pursuance of any objection
on which the Court from whose decree the appeal is
preferred has omitted or refused to make such order.
Illustration A claims a sum of money as due to him from X
or Y, and in a suit against both obtains a decree against
X. X, appeals and A and Y are respondents. The Appellate
Court decides in favour of X. It has power to pass a
decree against Y.
4. One of several plaintiffs or defendants may obtain
reversal of whole decree where it proceeds on ground
common to all.-Where there are more plaintiffs or more
defendants than one in a suit, and the decree appealed
from proceeds on any ground common to all the plaintiffs
or to all the defendants, any one of the plaintiffs or of the
defendants may appeal from the whole decree, and
thereupon the Appellate Court may reverse or vary the
decree in favour of all the plaintiffs or defendants, as the
case may be.”
18. In Harihar Prasad Singh and Ors. v. Balmiki Prasad
Singh and Ors., [1975] 1 SCC 212, the following statement of
law made by Venkatarama Aiyar, J. (as His Lordship then was)
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in the Division Bench decision in Krishna Reddy v. Ramireddi,
AIR (1954) Madras 848 was cited with approval which clearly
brings out the wide scope of power contained in Rule 33 and
the illustration appended thereto, as also the limitations on
such power:
“Though Order 41, Rule 33 confers wide and unlimited
jurisdiction on Courts to pass a decree in favour of a
party who has not preferred any appeal, there are,
however, certain well-defined principles in accordance
with which that jurisdiction should be exercised.
Normally, a party who is aggrieved by a decree should, if
he seeks to escape from its operation, appeal against it
within the time allowed after complying with the
requirements of law. Where he fails to do so, no relief
should ordinarily be given to him under Order 41, Rule
33.But there are well-recognised exceptions to this rule.
One is where as a result of interference in favour of the
appellant it becomes necessary to readjust the rights of
other parties. A second class of cases based on the same
principle is where the question is one of settling mutual
rights and obligations between the same parties. A third
class of cases is when the relief prayed for is single and
indivisible but is claimed against a number of defendants.
In such cases, if the suit is decreed and there is an appeal
only by some of the defendants and if the relief is granted
only to the appellants there is the possibility that there
might come into operation at the same time and with
reference to the same subject-matter two decrees which
are inconsistent and contradictory. This, however, is not
an exhaustive enumeration of the class of cases in which
courts could interfere under Order 41, Rule 33. Such an
enumeration would neither be possible nor even
desirable.”
19. In the words of J.C. Shah, J. speaking for a three-Judge
Bench of this Court in Nirmala Bala Ghose and Anr. v. Balai
Chand Ghose and Anr., [1965] 3 SCR 550, the limitation on
discretion operating as bounds of the width of power
conferred by Rule 33 can be so formulated –
“The rule is undoubtedly expressed in terms which are
wide, but it has to be applied with discretion, and to
cases where interference in favour of the appellant
necessitates interference also with a decree which has by
acceptance or acquiescence become final so as to enable
the Court to adjust the rights of the parties. Where in an
appeal the Court reaches a conclusion which is
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and in adjusting the right claimed by the appellant it is
necessary to grant relief to a person who has not
appealed, the power conferred by O.41 R.33 may
properly be invoked. The rule however does not confer an
unrestricted right to re-open decrees which have become
final merely because the appellate Court does not agree
with the opinion of the Court appealed from.”
20. A Division Bench decision of Calcutta High Court in
Jadunath Basak v. Mritunjoy Sett and Ors., AIR (1986)
Calcutta 416 may be cited as an illustration. The plaintiff filed
a suit for declaration that the defendant had no right or
authority to run the workshop with machines in the suit
premises and for permanent injunction restraining the
defendant from running the workshop. The Trial Court
granted a decree consisting of two reliefs: (i) the declaration
as prayed for, and (ii) an injunction permanently restraining
the defendant from running the workshop except with the
terms of a valid permission and licence under Sections 436
and 437 of Calcutta Municipal Act, 1951 from the Municipal
Corporation. The defendant filed an appeal. The Division
Bench held that in an appeal filed by the defendant, the
plaintiff cannot challenge that part of the decree which
granted conditional injunction without filing the cross-
objection. The Division Bench drew a distinction between the
respondent’s right to challenge an adverse finding without
filing any appeal or cross-objection and the respondent
seeking to challenge a part of the decree itself without filing
the cross-objection. The Division Bench held that the latter
was not permissible. We find ourselves in agreement with the
view taken by the High Court of Calcutta.
21. In the case before us, the Trial Court found the plaintiff (in
his suit) not entitled to decree for specific performance and
found him entitled only for money decree. In addition, a
conditional decree was also passed directing execution of sale
deed if only the defendant defaulted any paying or depositing
the money within two months. Thus to the extent of specific
performance, it was not a decree outright; it was a conditional
decree. Rather, the latter part of the decree was a direction in
terrorem so as to secure compliance by the appellant of the
money part of the decree in the scheduled time frame. In the
event of the appellant having made the payment within a
period of two months, the respondent would not be, and would
never have been, entitled to the relief of specific performance.
The latter decree is not inseparably connected with the former
decree. The two reliefs are surely separable from each other
and one can exist without the other. Nothing prevented the
respondent from filing his own appeal or taking cross-
objection against that part of the decree which refused
straightaway a decree for specific performance in his favour
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based on the finding of comparative hardship recorded earlier
in the judgment. The dismissal of appeals filed by the
appellant was not resulting in any inconsistent, iniquitous,
contradictory or unworkable decree coming into existence so
as to warrant exercise of power under Rule 33 of Order 41. It
was not a case of interference with decree having been so
interfered with as to call for adjustment of equities between
respondents inter se. By his failure to prefer an appeal or to
take cross-objection the respondent has allowed the part of
the Trial Court’s decree to achieve a finality which was
adverse to him. ”
42. In the case on hand, the core issue that stands answered
is that, in view of the omission to challenge the decree passed
in Regular Civil Suit no. 399 of 1990, and the finding having
attained finality, the captioned appeal is not maintainable.
When the appeal itself is held to be not maintainable, there
remains no foundational proceeding pending for exercise of
the powers under Order XLI Rule 33 of the Code. It is only
when a proceeding is pending, and in the absence of any
appeal filed by either of the parties to such proceeding, that
the appellate court may exercise the powers under Order XLI
Rule 33 of the Code. The object of conferring such powers
upon the appellate court is to avoid inconsistency, inequity or
inequality in reliefs granted to similarly placed parties and to
prevent unworkable decrees or orders from coming into
existence. Therefore, the contention, that this court can
exercise powers under Order XLI Rule 33 of the Code even in
the absence of any appeal, is rejected.
43. In view of the above discussion, as this Court has
accepted the preliminary objection regarding non-
maintainability, and the captioned appeal having been
dismissed, as not maintainable, other peripheral issues needPage 62 of 63
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not be examined including the Cross-Objection no.155 of 2005
and the same is disposed of accordingly. No order as to costs.
44. Records and proceedings, be sent back to the court
concerned forthwith.
Further Order
45. Mr.Shalin Mehta, learned Senior Counsel appearing with
Ms.Shikha Panchal, learned Advocate has invited the
attention of this Court to the order dated 23.07.2002, whereby
this Court has granted status quo as regards transfer
alienation of the disputed property till the final disposal of the
captioned appeal. It is urged that the same may be extended
for another period of six weeks from today.
46. Mr.Mehul Shah, learned Senior Counsel with Mr.Apurva
Kapadia, learned Advocate states that they have no objection
if the same is extended.
47. In view of the above, acceding to the request of
Mr.Shalin Mehta, learned Senior Counsel the status quo
granted vide order dated 23.07.2002 is extended for another
period of six weeks from today.
(SANGEETA K. VISHEN,J)
(MOOL CHAND TYAGI, J)
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