Delhi High Court
Sir Sobha Singh & Sons Ltd. vs Behari Lal Beni Pershad on 13 March, 1996
Equivalent citations: 1996IIAD(DELHI)298, 62(1996)DLT199, 1996(37)DRJ294, (1996)113PLR10, 1996RLR277, 1996 A I H C 3747, (1996) 2 CIVLJ 746, (1996) 62 DLT 199, (1996) 113 PUN LR 10, 1996 WLC(RAJ)(UC) 277, (1996) 37 DRJ 294, (1997) 1 CIVILCOURTC 16, (1996) 4 ICC 229, (1997) 1 LJR 665
Author: M. Jagnnadha Rao
Bench: M.J. Rao
JUDGMENT M. Jagnnadha Rao, C.J.
(1) This appeal is preferred by M/s Sir Sobha Singh & Sons Limited on 12.8.1968 against the Judgment and decree passed by the trial Judge on 23.5.1968. The printed format appended to the appeal memorandum shows that the appeal is preferred against the Judgment dated 23.5.1968 of the trial Judge in a suit in which the appellant was the plaintiff and it also states that the suit was for declaration that a pro note dated 11.10.1951 executed by the plaintiff for Rs. 1 lakh in favour of defendant No.l was void and not enforceable. The defendants/respondents' name is shown as M/s Behari Lal Beni Prasad and another. It is also stated that the suit was dismissed with costs.
(2) From the impugned Judgment we find Suit number in winch the appellant was plaintiff was High Court Suit No. 665 of 1966 and that Sim was disposed of on 23.5.1968 by the learned trial Judge. The Judgment further discloses that another suit,namely, Suit No. 344 of 1954 was filed by the firm M/s Behari Lal Beni Prasad (initially in the District Court) against the appellant company on the basis of the same pro note dated 11.10.1951 for recovery of Rs.l lakh with interest etc and that suit had been transferred to the High Court.
(3) In the Judgment under appeal, the learned trial Judge framed issues in para 6 in so far as they relate to the appellant's Suit No. 665 of 1966 and in so far as the issues arising in the other suit filed by the rcspondent,namely Suit No. 344 of 1954 are concerned, the issues are set out in para 8. The Judgment also says that both the suits were instituted in the Court of Senior Subordinate Judge,Dclhi and thereafter they were consolidated. Evidence was recorded by the trial Court and after coming into force of the Delhi High Court Act,1966, by order dated 3.11.1966 these suits were transferred to the High Court for further action. Before the suits came to the High Court the appellant's suit was given Suit No. 242 of 1953, while the 1st respondent's suit was Suit No. 344 of 1954. In the High Court they were numbered as Suit Nos. 665 of 1966 and 655 of 1966, respectively and were disposed of by the common Judgment dated 23.5.1968.
(4) In this appeal, a preliminary objection has been raised by the respondent that while an appeal has been preferred by M/s Sir Sobha Singh & Sons Ltd against the Judgment and decree in Suit No. 665/66 (formerly Suit No. 242/53) Filed by the appellant, no appeal has been preferred against the Judgment and decree in Suit No. 655/66 (formerly Suit No. 344/54) filed by the respondent against the appellant and that.therefore, the Judgment in Suit No. 655/66 operates as resjudicata in this appeal. It is,therefore, contended that it is not necessary for us to go into the merits of this appeal, as the same can be disposed of on the ground of resjudicata.
(5) Learned counsel for the appellant contended that the suits were consolidated and a common Judgment was rendered on the same day and that Section 11 Civil Procedure Code is not attracted inasmuch as the Judgment in the other suit cannot be said to be anterior in point of time.
(6) But, this point is, in our view, covered by the recent Judgment of the Supreme Court in the case of Premier Tyres Limited vs. Kerala State Road Transport Corporation (1993 Supp (2) S.C.C. 146) which was delivered by a 3 Judge Bench. In that case one suit was filed by the appellant for recovery of certain amount due to it on the basis of invoice price on supply of goods made by it to the rcs.pondcnt-Corporation. The respondent filed another suit for recovery of amount paid in excess of DGS&D contract rates. Both the suits were connected and tried together as the nature of dispute in both the suits were same. Issues framed were also common. The trial Court found that the respondent was liable to pay only at DGS&D contract rates and was entitled to refund to the extent of excess payment made by it and that the appellant was entitled to recover to the extent its claim was found to be substantiated even on the basis of DGS&D contract rates. Accordingly both the suits were partly decreed. The appellant did not file any appeal against the dismissal of the suit for the part of its claim but appeal was filed against the decree granted in favour of the Corporation in the suit filed by it. At the time of hearing, the High Court dismissed the appeal of the appellant as barred by res judicata as the finding recorded in the connected suit that the appellant was entitled to charge and collect only on the DGS&D rates and not on the invoice price had become final.
(7) The Supreme Court confirmed the Judgment of the High Court holding that "the 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. Thus the finality of finding recorded in the connected suit, due to non-filing of appeal, precluded the Court from proceeding with appeal in the other suit. In that context, the Supreme Court made reference to an earlier Judgment in Sheodan Singh vs. Daryao Kunwar (Smt) and also to Badri Narayan Singh vs, Kamdeo Prasad Singh . The Supreme Court also referred to Narhari vs. Shankar and Ramagya Prasad Gupta vs. Murli Prasad . With reference to the contention that Section 11 Civil Procedure Code did not apply, their Lordships referred to the observations in Narhari vs. Shankar to the effect that "even when there are two suits it has been held that decision given simultaneously cannot be a decision in the former suit". But the Supreme Court pointed out that this decision was distinguished in Sheodan Singh vs. Daryao Kanwar (Smt) as it related to only one suit and,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 suits 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". Their Lordships pointed out that in Ramagya Prasad Gupta vs. Murli Prasad "an effort was made to get the decision in Sheodan Singh 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 Civil Procedure Code were found missing." Having thus referred to the previous cases, their Lordships have now clearly held as follows:- "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."
(8) The above decision is clearly binding on us and covers the point against the appellant.
(9) The Supreme Court in the above case also made reference to the Judgment of the Constitution Bench in Badri Narayan Singh vs, Kamdeo Prasad Singh which was a case of an election petition and said that the same principle was tested in that case though it was a case of 2 appeals filed against a Judgment in one election petition. Finally the Supreme Court observed that 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.
(10) This latest decision of the Supreme Court is binding on us and following the said Judgment, we hold that the non filing of an appeal against the Judgment of the learned trial Judge in Suit No. 655 of 1966 (Old Suit No. 344 of 1954 filed by the respondent against the appellant) will, therefore, be a bar under Section 11 of the Code of Civil Procedure. This appeal fails and is dismissed accordingly. No costs.