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
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Approved for Reporting Yes No
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KOKILABEN SHAILESHKUMAR SHAH & ORS.
Versus
KANTILAL PURSHOTTAMDAS PATEL (SINCE DECEASED) & ORS.
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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
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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 Page 1 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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.
Page 2 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 3 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 4 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 5 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 6 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 7 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 8 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 9 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 10 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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) Page 11 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 12 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 13 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 14 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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.
Page 15 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 that as per Rule 32, the judgment would be for confirming, Page 16 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 only Page 17 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 respondents Page 18 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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.Page 19 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026
NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 defendants Page 20 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 the Page 21 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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.Page 22 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026
NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 OnLine Page 23 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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) plaintiffs Page 24 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 in Page 25 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 26 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 the Page 28 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 29 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 30 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 31 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 32 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 & Page 33 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 34 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 35 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 36 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 37 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 been made ground of defence or attack in such former suit Page 38 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 39 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 40 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 orders Page 41 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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.Page 42 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026
NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined
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 Page 43 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 44 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 in Page 45 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 46 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Section Page 47 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 48 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 a Page 49 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 50 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 51 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 two Page 52 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 A Page 53 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 54 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 the Page 56 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 58 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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) Page 59 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 inconsistent with the opinion of the Court appealed from Page 60 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 Page 61 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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 need Page 62 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026 NEUTRAL CITATION C/FA/356/2000 CAV JUDGMENT DATED: 20/03/2026 undefined 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) SINDHU NAIR Page 63 of 63 Uploaded by SINDHU NAIR(HC01395) on Wed Mar 25 2026 Downloaded on : Wed Mar 25 21:34:08 IST 2026