Read Judgement;
The Supreme Court has reiterated that procedural defect capable of being cured should not be allowed to defeat the substantive cause of action by the litigent.
The division-bench comprising of Justice J.K. Maheshwari and Justice Indra Banerjee while dealing with an appeal, observed:
"It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity."
Brief Facts of the Case
In the appeal, common judgement passed by Trial Court in two suits has been assailed. In Suit No.1, respondents sought ‘permanent injunction’ against appellant restraining it from interfering in the right of use of concerned passage or causing any interference or putting any obstruction in the usage of the said passage and not to make any septic tank, soakage pit or raise any other construction. The respondents also prayed for grant of ‘mandatory injunction’ against the appellant.
In Suit No. 2, appellant herein prayed for ‘permanent injunction’ restraining the respondents / defendants from providing or creating any passage through the property of appellant after demolishing the existing passage.
The common issues were framed by Trial Court to facilitate disposal of both suits by same evidence. Consequently, the aforesaid consolidated suits were disposed-off by the Trial Court by a common judgment. Aggrieved of the common judgment, appellant preferred first appeal and an application before the High Court.
The first appeal was admitted by High Court and two weeks’ time was granted to file objections on application and further two weeks to file rejoinder. The High Court without passing any order on the said application, at the time of hearing of the appeal, accepted the preliminary objection regarding maintainability of single first appeal without entering into the merits of the case.
The Court said that the case is restricted to the question of applicability of principle of res-judicata and, taking into consideration the material placed and the contentions raised by both the parties, the appeal was dismissed holding that one appeal is not maintainable and barred by res-judicata. Reliance was placed on various High Court judgements along with Supreme Court decision in Gangai Vinayagar Temple & Ors. Vs. Meenakshi Ammal & Ors., 2009 Latest Caselaw 718 SC wherein the Apex Court while dealing with the concept of res-judicata discussed law on the point of applicability of res-judicata and observed that losing party must file appeals in respect of all adverse decree founded even on partially adverse or contrary speaking judgments.
In impugned order, the High Court held that separate appeals ought to have been filed by appellant against the decree given both the suit Failure to file separate appeals would invite the applicability of principle of res-judicata. The High Court in the order concluded that one appeal against both the decrees is not tenable in terms of clear stipulation as per Section 96 of CPC. As separate appeals have not been filed against both the decrees, res-judicata would operate as against the findings given in another suit even after consolidation. Thus, held that, the cause of appellant is foreclosed by applicability of principle of res-judicata.
In the contentions, the Counsel of the appellant, inter alia argued that the essence of rule of res-judicata is that the two proceedings should be so independent of each other that the trial of one cannot be confused with trial of other suit, but where two suits having common issue were tried together and disposed-off vide single judgment, can they be said to be two distinct and independent trials.
Supreme Court's Observation
After having a careful look of the Section 96 CPC, the Court at the outset remarked that it is settled that an appeal is a continuation of the proceedings of the original court.
"Ordinarily, in the first appeal, the appellate jurisdiction involves a re-hearing on law as well as on fact as invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by re-appreciating the material and evidence. Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by re-appraisal. The court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties."
Noting that the record indicates that once at the time of admission of first appeal, despite having objection of maintainability it was admitted asking reply and rejoinder on application, the Court was of the view that the High Court ought to have decided the said application.
"Prior to deciding the preliminary objection, the High Court should have decided the said CLMA, either granting leave to file a single appeal or refusing to entertain one appeal against one judgment and two decrees passed in two suits after consolidation"
In case, the High Court would have rejected the said CLMA, the appellant could have availed the opportunity to file separate appeal against the judgment and decree passed in Civil Suit, the Court said.
Stating that without deciding the CLMA and accepting the preliminary objections, dismissing the appeal as barred by res-judicata, primarily appears contrary to the spirit of its own order, the Court opined that the approach adopted by High Court is not correct, because on dismissal of the CLMA, the appellant might have had the opportunity to rectify the defect by way of filing separate appeal under Section 96 of CPC challenging the same judgment with separate decree passed in Civil Suit.
"Converse to it, if this Court proceeds to consider the merit of the contentions raised in the said CLMA and record the findings in negative, it would effectively render the appellant remediless, therefore, we refrain ourselves from examining the merits of CLMA. It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity. Therefore, in our considered view, non-adjudication of the CLMA application, and upholding the preliminary objection of non-maintainability of one appeal by High Court has caused serious prejudice to the appellant."
In this background, the Court didn't express any opinion regarding correctness of the findings on the applicability of res-judicata, except to observe that those findings as arrived in the impugned order would not sustain because of not deciding the application filed by appellant seeking permission to file one appeal against a common judgment passed in a consolidated suit with two separate decrees.
Allowing the appeal, it observed:
"Therefore, in the light of the preceding discussion, approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the CLMA has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits."
CASE TITLE: M/S RAMNATH EXPORTS PVT. LTD. versus VINITA MEHTA & ANR.
CASE DETAILS: CIVIL APPEAL NO. 4639 OF 2022
CORAM: Justice J.K. Maheshwari and Justice Indra Banerjee
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