MANAGING DIRECTOR, ETC.versusK. RAMACHANDRA NAIDU AND ANR.

                   MANAGING DIRECTOR, ETC.                                        A
                             v.
               K. RAMACHANDRA NAIDU AND ANR.

                           SEPTEMBER 15, 1994

     [M.N. VENKATACHALIAH, CJ. AND DR. A.S. ANAND, J.)                            B

      Motor Vehicles Act. 1939:

      Section 68(d)-Scheme of nationalisation-Quash by Single Judge of
the High Court-Appeal by parties-State's appeal dismissed by Dil!ision            c
Bench declining to condone the delay-Appeal by one of the parties within
time dismissed as ba"ed by res judicata-Held not barred by res judicata-
Matter remitted back to High Court for fresh disposal on merits.

      Code of Civil Procedure, 1908 :
                                                                                  D
       Section 11-Res judicata-Appeal by State and.the other part)-State's
appeal time-ba"ed-Delay not condoned and appeal dismissed-Other ap-
peal filed in time by other party also dismissed as barred by res judicata-Held
not barred by res judicata-Matter remitted back to High Court for disposing
it on merits.
                                                                                  E
      The first respondent, a private transport operator filed a Writ
~etition   before the High Court seeking quashing of the scheme of
nationalisation approved under s.68(d) of the Motor Vehicles Act, 1939.
The Single Judge, who heard the matter held that the first respondent was
entitled to have his renewal application considered. The appellant, who was       F
impleaded as 3rd respondent in the Writ Petition pi;eferred an appeal
before the Division Bench of the High Court. While this appeal was within
the period of limitation, the appeal preferred by the State was beyond the
period of limitation. The Division Bench dismissed the State appeal,
declining to condone the delay. The appellant's appeal was dismissed on           G
the sole ground that since the appeal by the State was already dismissed
it was not main~inable as it was barred by the principle of res judicata.
Challenging the said order, appellant preferred the present appeal.

      Allowing the appeal and setting aside the Jligh Court's order, this
~rt                                                                               H
                                     583
    584                    SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.

A          HELD : 1. The State as well as the appellant were respondents in
    one and the same Writ Petition, against the decision of which they had
    filed separate appeals. The dismissal of the Writ Appeal filed by the State
    on the ground of delay not being condoned could not in law affect the
    maintainability of the Writ Appeal which had been filed by the appellant
    within time and was pending final hearing in the High Court. Thus the
B   High Court erred in holding that the appeal filed by the appellant was not
    maintainable being barred by res judicata. [586-B, C, 587-F]

            Sheodan Singh v. Daryao Kumar, AIR (1966) SC 1332, distinguished.

C        Narhari and Others v. Shanker and others, AIR (1953) SC 41'9, relied
    on and applied.

          2. Since the Writ Appeal filed by the appellant, within time, had been
    admitted and was pending hearing, it would have been more appropriate
    for the High Court to give the benefit of Section 5 of the Limitation Act
D   and condone the delay in filing the appeal by the State and heard both the
    appeals together on merits. However, since the State has not come up in
    appeal nothing more requires to be said. [587-G]

            3. Since the High Court dismissed the appeal as not maintainable,
E without going into the merits of the case, it is remitted back to the High
    Court for a fresh disposal on merits in accordance with law. It shall be
    open to the parties to raise all such pleas as are available to them in law
    in respect of their respective claims before the High Court during the
    hearing of the appeals. The High Court is requested to dispose of the Writ
    Appeal expeditiously and as far as possible within three months.
F                                                             [587-H, 588-A, BJ
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6063 of
    1994.

            From the iudgment and Order dated 19.9.89 of the Madras High
G Court in W.A. No. 675 of 1982.
            AV. Rangam and A Ranganathan for the Appellants.

            A.T.M. Sampath for the Respondents.

H           The Judgin°ent -of the Court was delivered by
          MANAGING DIRECTOR v. K.R. NAIDU [DR ANAND, J.]                 585

      DR. ANAND, J. Leave granted.                                              A

    This appeal is directed against the judgment of the High Cotlrt of
Madras dated 19.9.1989 dismissing appellant's Writ Appeal No. 675/82.

       The first respondent,a private transport operator in the State of        B
Andhra Pradesh who at the material time was operating his stage carriage
on the inter-state route Chittoor (in Andhra Pradesh) to Salem (in Tamil
N~du), filed Writ Petition No. 4343 of 1980 in the High Court of Madras
seeking quashing of the scheme of nationalisation approved under Section
68(d) of the Motor Vehicles Act, 1939 as published in G.O.Ms. No. 579
Home dated 7.4.1975 and for certain other reliefs. The learned Single           c
Judge of the High Court allowed the Writ Petition holding inter alia that
the entire scheme as approved, was inconsistent and not capable of im-
plementation and that the writ petitioner (1st respondent herein) was
entitled to have his renewal application considered on the said basis. The
appellant who had been impleaded as the 3rd respondent in the Writ              D
Petition, filed Writ Appeal No. 675/82 within the period of limitation. The
State of Tamil Nadu, also a respondent in the Writ Petition, filed a separate
Writ Appeal but beyond 150 days of the period of limitation, alongwith an
application seeking condonation of delay in preferring the appeal. While
notice was issued on the Writ Appeal filed by the State notice was issued       E
in the condone delay application. On 4.3.1986 a Division Bench of the High
Court, declined to condone the delay and dismissed the appeal filed by the
State. When the Writ Appeal filed by the appellant came up for hearing
before the Division Bench, the same was dismissed on the sole ground that
since the Writ Appeal filed by the State had already been dismissed by the
                                                                                F
Division Bench, the Writ Appeal filed by the appellant was barred by the
principle of res judicata and was as such not maintainable. Reliance was
placed by the Division Bench upon the judgment in Sheodan Singh v.
Daryao Kumar, AIR (1966) SC 1332.

      In our opinion, the view taken by the High Court is not sustainable G
and the reliance placed by it on Sheodan's case (supra) is misplaced.

      In Sheodan's case (supra) the facts were entirely different. In that
case the Trial Court had decided common issue relating to title which was
a common issue in four different suits. Four separate decrees had been          H
    586                    SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A   prepared. Two of the appeals, arising out of ~wo suits, were dismissed on
    a preliminary ground with the result that the decrees in those two suits
    became final. In the two appeals filed subsequently, the earlier order
    dismissing the two appeals was held to operate as res judicata and the two
    subsequent appeals were accordingly dismissed.
B
         In the present case the factual and legal situation is entirely different.
  The State as well as the appellant were respondents in one and the same
  Writ Petition, against the decision of which they had filed separate appeals.
  The dismissal of the Writ Appeal filed by the State on the ground of delay
  not being condone could not in law affect the maintainability of the Writ
C Appeal which had been filed by the appellant within time and was pending
  final hearing in the High Court. The order in the writ petition could have
  been challenged by one appeal only unlike in Sheodan Singh 's case where
  four appeals were required to be filed in law against the four decrees even
  though deciding the common issue relating to title. We cannot, therefore,
D subscribe to the view of the High Court that the dismissal of State's appeal,
  in the facts and circumstances of the case could operate as res judicata and
  bar the maintainability of the appeal filed by the appellant.

          In Narhari and others v. Shankar and others, AIR (1953) SC, 419 on
E   the suit of the plaintiff being decreed in the Trial Court, two separate
    appeals were taken by two set of defendants. The Appellate Court allowed
    both the appeals and- dismissed the plaintiffs suit by one judgment and
    ordered a copy of the judgment to be placed on the file of the connected
    appeal. The -plaintiffs preferred two separate appeals. One of the appeal
    was held time barred and invoking the principle of res judicata the High ·
F
    Court dismissed the other appeal also. Reversing the decision of the High
    Court, this Court observed:

                 ''The question of res judicata arises only when there are two
             suits. Even when there are two suits, it has been held that a decision
G            given simultaneously cannot be a decision in the former suit. When
             there is only one suit, the question of res judicata does not arise
             at all and in the present case, both the decrees are in the same
             case and based on the same judgment, and the matter decided
             concerns the entire suit. As such, there is no question of the
H            application of the principal, of res judicata. The same judgment
          MANAGING DIRECTOR v. KR. NAIDU [DR.ANAND, J.]                    587

         cannot remain effective just because it was appealed against with A
         a different number or a copy of it was attached to a different
         appeal. The two decrees in substance are one."

        It is relevant to notice here that in Sheodan's case (supra), the Bench
· coiisidered the judgment in Narhari's case (supra) and pointed out the
  distinguishing features in the two cases. This Court referring to Narhari's B
  case (supra) observed:

             "That case however has no application to the facts of the
         present case, because there the suit was only one which was
        followed by two appeals. The appeals werl! heard together and             C
         disposed of by the same judgment though separate decrees were
         prepared. An appeal was taken against one of the decrees. In those
        .circumstances this Court held that as there was only one sui~ it was
         not necessary to file two separate appeals and the fact that one of
         the appeals was time-barred did not affect the maintainability of the    D
         other appeal and the question of res judicata did not at all arise. In
         the present case there were different suits from which different ·
         appeals had to be filed. The High Court's decisions in the two
         appe~s arisingfrom suits Nos. 77 and 91 was undoubtedly earlier
        and therefore the condition in a former suit to give rise to res ·
        judicata in a subsequent suit wa5 satisfied in the present case." E
        (Emphasis supplied).

       The law laid down in Narhari's case (supra) squarely applies to the
facts to the present case and the High Court, therefo~e, fell in error to hn.ld
that the appeal filed by the appellant was not maintainable being barred          F
by res judicata.

      We are also of the opinion that since the Writ Appeal filed by the
appellant, within time, had been admitted and was pending hearing, it
would have been more appropriate for the High Court to give the benefit G
of Section 5 of the Limitation Act and condone the delay in filing the
appeal by the State and heard both the appeals, together, on merits.
However, smce the State has not come up in appeal, we may say nothing
more regarding the same.

      Since, the High Court dismissed the appeal as not maintainable,             H
    588                   SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

A   without going into the merits of the case, we set it aside and remit the case ·.
    back to the High Court for a fresh disposal of the appeal on merits in ;
    accordance with law. It shall be open to the parties to raise all such pleas
    as are available to. them in law in respect of their respective claims before ·
    the High Court during the hearing ofthe appeals. We request the High
B   Court to dispose of the Writ Appeal expeditiously and as far as possiblt'f ·
    within three months from the da_te of receipt of the copy of this order.

    G.N.                                                         Appeal allowed.