Madras High Court
Renganayagi vs K.R. Renganathan Mudaliar on 20 July, 2009
Author: Prabha Sridevan
Bench: Prabha Sridevan, C.T. Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 20-07-2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE C.T. SELVAM L.P.A.No.15 of 2005 and C.M.P.Nos.15870 to 15872 of 2005 1. Renganayagi 2. Rajamanika Gounder(died) 3. Purushothaman 4. Ramesh 5. Latha 6. Dharani ... Appellants (Appellants 3 to 6 are substituted as proposed appellants as LRs of the deceased 2nd appellant as per order of Court dated 23-10-2003 made in C.M.P.No.16728 of 2003 by CJ & FMIKJ) Vs. K.R. Renganathan Mudaliar ... Respondent Letter Patents Appeal under Clause 15 against the judgment and decree in A.S.No.185 of 1989 dated 14-12-2000. For appellants :: Mr. V. Vijayshankar For respondent :: Mr. V. Srinivasan JUDGMENT
(Judgment of the Court was delivered by Prabha Sridevan,J.) The learned Single Judge did not go into the merits and dismissed the appeal only on the ground of res judicata. Against that, present appeal has been filed.
2. A very elegant point is raised in this appeal which involves the construction of Order 41 Rule 33 as it stands amended now. There is no dispute that there were two suits. One was filed by the appellant herein and the other by the respondent. The appellant's suit for declaration that the aforesaid sale deed is sham and nominal. The Trial Court decreed the respondents' suit and dismissed the appellant's suit. An appeal was filed only against the decree granted in the respondents' suit. Against the dismissal of the appellant's suit no appeal was filed and therefore, the learned Single Judge held that the decree passed in O.S.No.20 of 1986 would operate as resjudicata and therefore, there cannot be any appeal against the decree in O.S.No.27 of 1985.
3. Order 41 Rule 33 reads thus:
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."
4. The learned counsel for the appellant submitted that since both the suits were disposed of by a common judgment, there is no former judgment for Section 11 to come into play. Further Order 41 Rule 33 is very clear that all the questions raised in the appeal may be considered by the Appellate Court, even though an appeal has not been filed, there have been several decrees in cross suits or where two or more decrees passed in one suit, then the appellate jurisdiction may be exercised in all or any of the decrees so that an appeal may not be filed between that decrees. The learned counsel submitted that all the decisions which held that the non-filing of the appeal would operate res judicata either arose out of matters which were before 1976 amendment of CPC or this aspect has not been considered. The learned counsel appearing for the respondent submitted that case laws decided hold that the decision is res judicata. In ILR 1965 Madras 1(Subbiah Udayar Vs. Karuppiah Odayar alias Pichai Odayar) even before this amendment was enacted, the Division Bench of this Court hearing the appeal against the order of the Estates Abolition Tribunal had to consider whether the decision passed in O.P.No.331 of 1961 under Section 51(1) of the Madras Act XXVI of 1948 having been allowed to become final would operate as res judicata in O.P.No.332 of 1961 as both of them had been disposed of by a common order. The Division Bench of this Court presided over by Ramachandra Iyer, C.J., as he then was, relied on 1962 (3) SCR 759(Narayan Singh Vs. Kamdeo Prasad Singh) where it was observed thus:
"The question of res judicata raises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata."
"When there is only one lis the question of res judicata does not arise at all. Both the decrees in the instant case are based on the same judgment and the matter decided concerns the entire claim. The subject matter in dispute between the parties in substance can be regarded as forming one lis only. By virtue of the peculiar procedure obtaining in regard to applications filed under section 42 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948), it has been the practice for such claimant to compensation money to file his own application.
In such a case, the applications are consolidated for the purpose of hearing and a common judgment given. Both the applications in the instant case must be regarded, therefore, as comprising a single controversy and that they should be regarded as constituting a single proceedings as the subject-matter is the same. There is no question of the application of the principle of res judicata to such a case."
5. In AIR 1969 Allahabad 504(Jai Narain Har Narain Vs. L. Bulaqi Das) held that, "(Per Full Bench) that the result of consolidating the two suits was to combine the controversy and a single proceeding. Since the only common judgment in the proceeding had been put in jeopardy by being appealed against it was not a matter finally decided so as to attract the bar under S.11."
6. In AIR 1970 Madras 76(Kathoom Bivi Ammal Vs. Arulappa Nadar) the judgment in (1965) ILR 1 Mad 57(supra) was followed.
7. In AIR 1971 AP 179 (V.58 C 34)(K.A. Natesa Chettiar Vs. Nune Krishiah Chetty) it was held that, "28. At least three classes of cases involving consideration of the doctrine of res judicata in such cases are conceivable. One class illustrates cases of cross suits, each suit having the same subject-matter, the same issue and the same parties though differently arraigned that is plaintiff is one suit is defendant in the other, or plaintiffs filing two suits for two reliefs involving the same question of fact, the subject-matter being the same. The second or the next class of cases are those in which the party appealing from one of the decrees involving a common issue is not competent to appeal from the other decree or decrees as he is the winning party there. In this latter class, the reliefs or subject-matters may not be identical in all of them. The third class is the one in which scopes of the suits tried together and involving a common issue are different, the parties are not identically the same and the appellant party having been a loser in the decrees not appealed from could prefer an appeal but did not do so and allowed the decrees to become final.
29. It is the first class with which we are concerned. In first named class, challenge of one decree in appeal amounts in substance though not in form to challenge of other and the adjudication in appeal covers the same subject-matter in the presence of the same parties. In such cases, if no appeal is filed from one decree, it does not operate as res judicata in the appeal filed against the other decree as it covers the entire subject-matter involved in both the suits. That is what the Supreme Court has laid down in the above said case. It is therefore clear that when the matter in issue in two suits was the same and the finding in one suit either has been adopted in the other or a common judgment is given in both the suits and two decrees are separately prepared, an appeal against one of these decrees is not barred by res judicata on the ground that no appeal was filed against the other decree. This view was even earlier taken by Panchanda Velan V. Vaithinatha Sastrial, (1906) ILR 29 Mad 333 (FB), Ramaswamy Chetty V. Karuppan Chetty, AIR 1916 Mad 1133, and Govindayya V. Ramamurthi, AIR 1941 Mad 524."
"32. What emerges from the two decisions of the Supreme Court referred to above is that where the suits or appeals raise only common issues for decision and there has been one trial, one finding and one decision, an appeal against the decree in one suit or the appeal will not be barred by res judicata by not filing an appeal against the decree in the other suit or the appeal. But where the subject-mater of each of the two suits or the appeals is different and the decision in the two proceedings thus stated in one judgment, really amounts to two decisions and not one decision common to both the proceedings, an appeal filed against the decision in one proceeding will be barred by the rule of res judicata if no appeal is filed against the decision in the other proceedings."
8. In 1987 (Supp) SCC 528(Mahant Dhangir and another Vs. Madan Mohan), the Supreme Court held that the Appellate Court could exercise the power in under Rule 33 even if the appeal is only against a part of the decree of the lower court and in fact held that there should be no constraint in passing an order that would meet the ends of justice though the rule is liberal enough.
"The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities."
9. In AIR 2004 Madras 538(Bond Food Products Pvt.Ltd., Vs. M/s. Planters Airways Ltd.) this Court held thus:
"It is settled law that Order 41, Rule 33, CPC, is intended to remove uncertainty with regard to res judicata and in order to empower the Appellate Court "to do complete justice" between the parties, without standing on technicalities, notwithstanding the scope of the appeal filed by the appellants. Even though no Court can be compelled to make an order under this rule, it cannot be denied that the above rule enables the Appellate Court to prevent the ends of justice being defeated. Of course, such discretion conferred to the Appellate Court has to be exercised ina judicious manner. Therefore, we are of the considered opinion that even though the respondent has not preferred any appeal or cross-appeal challenging the finding of the learned Trial Judge that he had got jurisdiction to try the suit, the respondent is entitled to agitate him claim. Point (i) is answered accordingly."
10. On the side of the respondent AIR 1981 Madras 282(Angappa Gounder Vs. Rajavelu Gounder) was relied on where again two suits were disposed of under a common judgment and an appeal was filed and it was held that since the decree in one suit had been allowed to become the sole appeal was barred by res judicata.
11. In 1997 (9) SCC 543(Ram Prakash Vs. Charan Kaur (Smt.)), the Supreme Court had occasion to consider two connected suits claiming damages against each other and when appeal was filed against only one suit. It was held that it barred the other suit by operation of res judicata.
12. In 1976 SC 1645(Lonankutty Vs. Thomman), the Supreme Court held that, "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 respondents' 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."
13. In AIR 1992 Madras 280(Arumugha Nainar Vs. Lakshmana Perumal(died)) two suits, one for declaration of title and another suit by for declaration of title and injunction restraining the appellant from interfering with possession. Both the suits were tried together and it was held that operated as res judicata in respect of the applications filed by the parties.
14. From the law laid down in ILR (1965) (1) Madras 57 (cited supra) following the decision of the Supreme Court in 1962 (3) SCR 759 and 1950 SCR 754(Narhari Vs. Shankar) it follows if the appellant challenged the decree passed only in one of two suits tried together merely because he has not filed an appeal, against the other, the appeal filed will not be hit by res judicata. As observed by the Division Bench in the judgment cited above, there was only one controversy which was decided by the Court and there was only one judgment. Therefore, there was no former judgment to operate as res judicata against the judgment challenged in appeal. Since the learned Single Judge has not considered the appeal on merits, we answer this question in favour of the appellant and remit the appeal to be decided on merits by a learned Single Judge.
15. The letters patent appeal is allowed. The appeal shall be listed for consideration of the merits. However, there will be no order as to costs. The connected miscellaneous petitions are closed.
glp