Uttarakhand High Court
Deedar Singh & Ors. ... vs Malkeet Singh on 25 February, 2020
Author: Lok Pal Singh
Bench: Lok Pal Singh
N THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.16 of 2020
Deedar Singh & Ors. .....Appellants/defendants
Versus
Malkeet Singh ..... Respondent/plaintiff
Mr. P.C. Pethshali, Advocate for the appellants
Mr. R.C. Tamta, Advocate for the respondent
Hon'ble Lok Pal Singh, J. (Oral)
Present second appeal has been preferred against the judgment/decree dated 16.10.2019/23.10.2019 passed by 2nd Addl. District Judge, Udham Singh Nagar in Civil Appeal No.49 of 2013 Deedar Singh and others vs. Malkeet Singh, whereby the appeal filed by the appellant/defendants against the judgment and decree dated 09.10.2013 passed by Civil Judge (Junior Division) Kashipur, District Udham Singh Nagar has been dismissed.
2. Factual matrix of the case is that the respondent/plaintiff Malkeet instituted a suit being O.S. No.171 of 2000 against the appellants/defendants for perpetual prohibitory injunction. Appellants/defendants contested the suit and filed their written statement and raised a counter claim. Respondent/plaintiff filed written statement to the counter claim of appellants/defendants, and filed replica of the written statement of the appellants/defendants. On the basis of pleadings of parties, trial court framed relevant issues. Thereafter, both the parties led their evidence. The trial court, after hearing the parties and on perusal of entire evidence on 2 record, by the impugned judgment/decree, decreed the suit of the respondent/plaintiff and dismissed the counter claim of the appellants.
3. Feeling aggrieved, the appellants/defendants preferred an appeal being Civil Appeal No.49 of 2013 challenging the decree passed in favour of the respondent/plaintiff. However, they did not prefer any appeal against the order of dismissal of their counter claim. Learned 2nd Additional District Judge, Rudrapur, District Udham Singh Nagar, vide its judgment and order dated 16.10.2019, dismissed the appeal of the appellants/defendants, Hence, present second appeal.
4. I have heard Mr. P.C. Petshali, learned counsel for the appellants and Mr. R.C. Tamta, learned counsel for the respondents and perused the material brought on record.
5. Perusal of record would reveal that against the suit filed by the respondent/plaintiff, the appellants/defendants apart from filing the written statement had also filed the counter claim. Two separate decrees were drafted for decreeing the suit and dismissing the counter claim by the trial court. The appellants/defendants filed only one appeal being Civil Appeal No.49 of 2013 challenging the decree passed in favour of the respondent/plainitiff, namely decreeing the suit. No appeal was filed challenging the dismissal of the counter claim. It is well settled principle in law that the nature of a counter claim in a suit is like an independent suit and the decree passed therein is a separate decree. When a common judgment is delivered in 3 respect of suit and counter claim, separate appeals are to be filed in respect of the decree passed in suit as well as against the decree passed in the counter claim. If a party fails to file appeal in respect of one of the suits, the judgment will operate as res judicata in respect of the judgment not appealed. In the present case, the suit filed by the appellant was decreed and counter claim filed by the respondents was dismissed. The respondents did not file any appeal challenging the decree of dismissal of the counter claim. The first appellate court, failed to consider the failure on the part of the respondents to challenge the dismissal of the counter claim. The first appellate court also failed to take note that the appeal filed by the appellants/defendants is barred by the principles of res judicata as the decree of dismissal of counter claim has not been challenged by filing a separate appeal. However, the first appellate court, after hearing the parties and upon perusal of evidence, dismissed the appeal on merits. The decree passed in counter claim in favour of the defendant/respondent remained unchallenged and therefore the same has attained finality. That being the position, the civil appeal itself was barred by principles of res judicata.
6. My view is fortified by the decision of Hon'ble Apex Court rendered in the case of Premier Tyres Limited vs. Kerala State Road Transport Corporation, 1993 Supp (2) Supreme Court Cases 146, wherein it has been held that where two connected suits are tried together and a finding has been recorded in one suit became final in absence of appeal, appeal preferred against the finding recorded in the other suit would be barred by res judicata. Relevant paragraphs of the judgment are as follows:
4"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 suit 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 becomes final. This finality can be taken away only in accordance with law. Same consequences follow when a judgment or decree in a connected suit is not appealed from.
6.Thus the finality of finding recorded in the connected suit, due to non-filing of 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."
7. Similar view has been taken by the Hon'ble Apex Court in Sri Gangai Vinayagar Temple and others vs. Meenakshi Ammal and others, 2015 (3) SCC 624 wherein it has been held that when multiple suits were filed and they were decided by the common judgment and separate decrees therefore assailing the judgment of one suit would bar the decree passed in another suit by the principle of res judicata.
8. In view of the aforesaid, this Court is of firm view that the civil appeal no.49 of 2013 filed by the appellants/defendants was not maintainable and was barred by principle of res judicata. Consequently, no substantial question of law arises in this appeal. Second appeal is, accordingly, dismissed.
9. No order as to costs.
(Lok Pal Singh, J.) 25.02.2020 Rajni