Supreme Court of India
STATE OF ANDHRA PRADESH & ORS.versusB. RANGA REDDY (D) BY LRS & ORS.
- Citation
- 2019 INSC 886
- Decided
- 9 August 2019
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
Findings in the first and second suits do not operate as res judicata because the decrees of dismissal have not attained finality; an appeal lies only against a decree, and the State may dispute those findings without cross‑objections.
Summary
Three civil suits involving the State of Andhra Pradesh were tried together, two of which (suits No. 274/1983 and 276/1983) were dismissed while the third (suit No. 141/1984) was decreed in favour of the plaintiffs. The State appealed the decree in the third suit, arguing that the findings on the title issue in the first two suits should operate as res judicata and bar the appeal. The High Court held that the findings were deemed decrees and thus res judicata applied, dismissing the State's appeal. The Supreme Court reversed this, holding that the decrees of dismissal in the first two suits had not attained finality because they were still under appeal, and therefore the findings could not be treated as res judicata. It further clarified that an appeal lies only against a decree, not a mere finding, and the State could dispute the findings without filing cross‑objections, while the appellate court retains powers under Order XLI Rule 33. Consequently, the Supreme Court set aside the High Court order and allowed the State’s appeals.
Issues considered
- The effect of findings recorded in earlier suits that were dismissed on the res judicata bar in a later appeal.
- Whether a decree of dismissal of a suit is appealable under Section 96 CPC.
- The necessity of filing cross‑objections under Order XLI Rule 22 to challenge findings of fact.
- The applicability of Section 11 and Explanation I of the CPC when the decree has not attained finality.
- The impact of consolidation of suits versus separate trials on the operation of res judicata.
Legislation cited
- Code of Civil Procedure, 1908s. 11, s. 151, s. 2(2), s. 2(9), s. 96
- Order XLIs. Rule 22, s. Rule 33
Subjects
res judicatadecreeappealCode of Civil ProcedureOrder XLI Rule 22Order XLI Rule 33consolidation of suitscross‑objectionfinality of decreecivil procedure
Judgment
[2019] 10 S.C.R. 143 143
STATE OF ANDHRA PRADESH & ORS. A
v.
B. RANGA REDDY (D) BY LRs & ORS.
(Civil Appeal No. 17486 of 2017)
AUGUST 09, 2019 B
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908 – ss.11, 96 and Or. XLI, r.22,
Or.XLI, r.33 – Three separate suits were filed against the defendants
including the State – First and second suit were in respect of land
C
falling in Survey No.9 of 2013 of Khairatabad Village – Third suit
was in respect of land falling in Survey Nos.49 and 50 in Rasoolpura
Village – State contested on the ground that the land in all the three
suits fell in Survey No.43 of Village Bholakpur, which is a
Government Shikkam Talab – All the suits tried together – First two
suits dismissed, however, the third suit was decreed against the State D
– State filed appeal against the decree in the third suit, which was
objected on the ground that the findings recorded on Issue No.1 in
the first and second suit have to be treated as decree and would
operate as res judicata – High Court inter alia held that without filing
cross-objections, the Govt. cannot challenge the findings of the
E
trial court – On appeal, held: Present is a case where the decree is
of dismissal of suit therefore, entirely in favour of the State and not
executable – Decree of dismissal of the first and second suit has
not attained finality and are under challenge by the plaintiffs and
the defendants-State are entitled to dispute findings on Issue No.1
– All the issues are open for consideration before the First Appellate F
Court including the findings of fact on Issue No.1 – Defendants
have right to dispute such findings by filing cross-objections u/Or.
XLI, r. 22, as amended in the year 1976 or even in the exercise of
the powers conferred on the Appellate Court u/Or. XLI, r. 33 –
Further, s.11 and Explanation I would be applicable in subsequent
G
proceedings between the same parties or between the parties under
whom they or any of them claimed under the same title – But the
findings in the first and second suit will not operate as res judicata
as such findings are subject matter of challenge in the appeals filed
by the plaintiffs in their respective suits – High Court failed to draw
H
143
144 SUPREME COURT REPORTS [2019] 10 S.C.R.
A the distinction between the decree and a finding on an issue – It is
the decree against which an appeal lies in terms of s.96 – Defendants-
State could not file appeal against a decree which was of dismissal
of suit simpliciter – Order of the High Court set aside.
Words & expressions – “Decree”, “Judgment” – Meaning of
B – Discussed – Code of Civil Procedure, 1908 – ss.2(2), 2(9).
Suits – Consolidation of – Plea of the respondents drawing
distinction between an order of consolidation of suits and the order
where common judgment is rendered in different suits – Held: Not
tenable in law.
C Allowing the appeals, the Court
HELD: 1.1 The findings recorded by the High Court are
patently erroneous. The present is a case where the decree is of
dismissal of suit therefore, entirely in favour of the State and not
executable. [Paras 12, 19] [156-H; 160-D]
D
1.2 The decree in Civil Suit No. 274 of 1983 or 276 of 1983
(First Suit and Second Suit) has not attained finality and the same
are still subject matter of appeal before the First Appellate Court
wherein, the findings recorded by the trial court can be set aside
while maintaining ultimate decree of dismissal of the suit. The
E decree of dismissal of the first and second suit has not attained
finality which are under challenge by the plaintiffs and the
defendants-State are entitled to dispute findings on Issue No.1
even without filing cross objections or in terms of Order XLI
Rule 33 of the Code of Civil Procedure, 1908 that the decree of
F dismissal of suit on the grounds other than what weighed with
the learned trial court. All the issues are open for consideration
before the First Appellate Court. [Paras 26, 31] [166-F-G;
169-E-F]
1.3 Section 11 and Explanation I of the Code would be
applicable in subsequent proceedings between the same parties
G
or between the parties under whom they or any of them claimed
under the same title. But the findings in the first and second suit
will not operate as res judicata as such findings are subject matter
of challenge in the appeals filed by the plaintiffs in their respective
suits. All the three suits have been decided together and the
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 145
(D) BY LRs & ORS.
three appeals pending against such judgment and decrees. A
Therefore, it cannot be said that the first and the second suit are
the former suits as the decree passed therein has not attained
finality. The findings recorded therein will not, therefore, operate
as res judicata as the State is not obliged to challenge findings on
Issue No.1 in the first and second suit even after the amendment
B
of Order XLI Rule 22 of the Code. The High Court has failed to
draw the distinction between the decree and a finding on an issue.
It is the decree against which an appeal lies in terms of Section
96 of the Code. Decree in terms of Section 2(2) of the Code means
formal expression of an adjudication conclusively determining
the rights of the parties. The defendants-State could not file an C
appeal against a decree which was of dismissal of a suit simpliciter.
The findings on Issue No.1 against the State could be challenged
by way of cross-objections in terms of amended provisions of
Order XLI, Rule 22 of the Code but such filing of cross-objections
is not necessary to dispute the findings recorded on Issue No. 1
D
as the defendants have a right to support the ultimate decree
passed by the trial court of dismissal of suit on grounds other
than which weighed with the learned trial court. Even in terms of
Order XLI Rule 33 of the Code, the Appellate Court has the
jurisdiction to pass any order which ought to have been passed
or made in proceedings before it. As per facts on record, Original E
Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The
plaintiffs are in appeal in both the suits before the First Appellate
Court. Therefore, such decree including the finding on Issue No.
1 has not attained finality as the Appellate Court is seized of the
entire controversy including the findings of fact on Issue No.1.
F
The defendants have a right to dispute such findings by filing
cross-objections under Order XLI, Rule 22 of the Code as
amended in the year 1976 or even in the exercise of the powers
conferred on the Appellate Court under Order XLI Rule 33 of
the Code. [Paras 32, 36 and 37] [169-G-H; 170-A-B; 173-C-F]
1.4 The decree is of dismissal of the suit, whereas, the G
reasons for passing such decree is judgment as defined in Section
2(9) of the Code. In terms of Section 11 read with Explanation I,
the issue in a former suit will operate as res judicata only if such
issue is raised in a subsequent suit. Since, the issue of title has
H
146 SUPREME COURT REPORTS [2019] 10 S.C.R.
A not attained finality, therefore, it is not a former suit to which
there can be any application of Section 11. The order passed by
the High Court in the first appeal filed by the State is set aside,
as the findings on Issue Nos. 1 and 2 in the first and second suit
do not operate as res judicata. [Paras 38, 39] [173-G-H;
174-A-B]
B
Ramesh Chandra v. Shiv Charan Dass AIR 1991 SC
264 : [1990] Suppl. SCR 97 ; S. Nazeer Ahmed v. State
Bank of Mysore & Ors. (2007) 11 SCC 75 : [2007]
1 SCR 843 – relied on.
C Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.
[1962] 3 SCR 759 ; Ashok Nagar Welfare Association
& Anr. v. R. K. Sharma & Ors. (2002) 1 SCC 749 :
[2001] 5 Suppl. SCR 662 ; Bhanu Kumar Jain
v. Archana Kumar and Another (2005) 1 SCC
787 : [2004] 6 Suppl. SCR 1104 – held inapplicable.
D
Narhari & Ors. v. Shankar & Ors. AIR 1953 SC
419 : [1950] SCR 754 ; Ganga Bai v. Vijay Kumar &
Ors. (1974) 2 SCC 393 : [1974] 3 SCR 882 ; Banarsi
& Ors. v. Ram Phal (2003) 9 SCC 606 : [2003] 2 SCR
22 ; Hardevinder Singh v. Paramjit Singh & Ors. (2013)
E 9 SCC 261 : [2013] 1 SCR 903 ; Sri Gangai Vinayagar
Temple & Anr. v. Meenakshi Ammal & Ors. (2015) 3
SCC 624 : [2014] 12 SCR 845 ; Chitivalasa Jute Mills
v. Jaypee Rewa Cement (2004) 3 SCC 85 ; Sheodan
Singh v. Daryao Kunwar (Smt.) [1966] 3 SCR 300 ;
F Lonankutty v. Thomman & Anr. (1976) 3 SCC
528 : [976] Suppl. SCR 74; Premier Tyres Limited v.
Kerala State Road Transport Corporation (1993) Supp.
(2) SCC 146 ; Harbans Singh & Ors. v. Sant Hari Singh
& Ors. (2009) 2 SCC 526 : [2009] 1 SCR 250 ; Nirmala
Bala Ghose v. Balai Chand Ghose [1965] 3 SCR 550 ;
G Govindammal (D) by LRs & Ors. v. Vaidyanathan &
Ors. (2018) 14 SCALE 198 – referred to.
Case Law Reference
[1950] SCR 754 referred to Para 5
H [1974] 3 SCR 882 referred to Para 5
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 147
(D) BY LRs & ORS.
[2003] 2 SCR 22 referred to Para 5 A
[2013] 1 SCR 903 referred to Para 5
[2014] 12 SCR 845 referred to Para 5
(2004) 3 SCC 85 referred to Para 5
[1990] Suppl. SCR 97 relied on Para 5 B
[2007] 1 SCR 843 relied on Para 5
[1966] 3 SCR 300 referred to Para 6
[1976] Suppl. SCR 74 referred to Para 6
C
1993 Supp. (2) SCC 146 referred to Para 6
[2009] 1 SCR 250 referred to Para 6
[2001] 5 Suppl. SCR 662 held inapplicable Para 6
[1965] 3 SCR 550 referred to Para 6
D
[2004] 6 Suppl. SCR 1104 held inapplicable Para 6
(2018) 14 SCALE 198 referred to Para 8
[1962] 3 SCR 759 held inapplicable Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 17486
E
of 2017.
From the Judgment and Order dated 01.10.2012 by the High Court
of Judicature of Andhra Pradesh at Hyderabad in City Civil Court Appeal
No. 194/1998.
With F
Civil Appeal No. 17487 of 2017
Contempt Petition (C) No. 204/2014 in SLP (C) No. 8243 of 2013.
Dushyant A. Dave, V. Giri, C. S. Vaidhyanthan, Jay Savla, P.
Venugopal, Gopal Sankarnarayanan, Sr. Advs., Ms. Bina Madhavan,
G
Ms. Akanksha Mehra, Ms. Elizabeth Anthony, Ms. Sweena Nair, M. P.
Shorawala, P. Venkat Reddy, Prashant Tyagi, Anirudh Gupta, Akshay
Manorajan, Dr. Raja Ram Punna, Ms. Suveni Bhagat, M/s. Venkat Palwai
Law Associates, G. N. Reddy, Ms. Renuka Sahu, Anurag, Venkateswara
Rao Anumolu, Chandra Mohan Anisethy, K. K. Mani, B. V. S. Sita
H
148 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Ramaraju, Ms. Vasudha Singh, M/s. Lawyer S Knit & Co., Annam D.
N. Rao, Sateesh Galla, N. Rajaraman, B. Shravanth Shanker, Ms.
Monalisa Kosaria, Vishal Sinha, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
B
1. The challenge in the present appeals is to an order passed by
the High Court of judicature of Andhra Pradesh at Hyderabad on October
01, 2012 whereby an appeal filed by the appellants was found to be hit
by the principle of res judicata and was dismissed.
C 2. The brief facts leading to the present appeals are that three
separate suits were filed against the defendants including the State: first,
Original Suit No. 274 of 1983 in respect of 6.08 guntas of land comprising
in Survey No. 9 of 2013 of Khairatabad Village; second suit bears Original
Suit No. 276 of 1983 in respect of 3 guntas of land comprising in Survey
No. 9 of 2013 of Khairatabad Village; and third suit bears Original Suit
D No. 141 of 1984 which has been filed in respect of land measuring 19.23
guntas in respect of land falling in Survey Nos. 49 and 50 in Rasoolpura
Village. The stand of the State in all the suits is that the land in all the
three suits falls in Survey No. 43 of Village Bholakpur, which is a
Government Shikkam Talab measuring 145 acres 35 guntas, popularly
E known as Hussain Sagar Talab. All three suits were tried together. The
evidence was recorded in Original Suit No. 274 of 1983. The issues and
the findings recorded by the learned trial court on issues of title are as
under:
“ORIGINAL SUIT NO. 274 OF 1983 – FIRST SUIT
F Issues
1) Whether the suit property is part of Sy. No. 9/13 of
Khairatabad Village as claimed by the plaintiff or whether it
is a part of Sy. Nos. 49 and 50 of Rasoolpura Village as
claimed by the defendants 1 to 4 or whether it is the part of
G Sy. No. 43 of Bholakpur Village as claimed by the
Government?
Finding
Para 40. The plaintiff miserably failed to establish that the
suit property forms part of Sy. No. 9/13 of Khairatabad
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 149
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
Village. But the defendants 1 to 4 clearly established that it A
forms part of Sy. Nos. 49 and 50 of Rasoolpura. However,
the Government also failed to established that the suit land
forms part of Sy. No. 43 of Bholakpur Village.
2) Whether the plaintiff is entitled for declaration of his title to
the suit property and whether he is entitled for the B
consequential relief of permanent injunction or in the
alternative for possession of the suit property?
Finding
Para 41. The plaintiff miserably failed to establish his title
and possession in the suit property and as such, he is not C
entitled for the relief of declaration or permanent injunction
or possession.
3) To what relief?
Finding D
Para 44. In the result, the suit is dismissed with costs.
ORIGINAL SUIT NO. 276 OF 1983 – SECOND SUIT
Issues
1) Whether the suit property is part of Sy. No. 9/13 of E
Khairatabad Village as claimed by the plaintiff or whether it
is a part of Sy. No. 49 and 50 of Rasoolpura village as claimed
by the defendants 1 and 2 or whether it is the part of Sy. No.
43 of Bholakpur Village as claimed by the Government?
Finding F
Para 45. Issue No. 1 in Original Suit No. 274 of 1983 and
this issue are practically one and the same and as such the
finding on issue No. 1 in Original Suit No. 274 of 1983 holds
good for this issue also.
2) Whether the plaintiff is entitled for declaration of his title to G
the suit property and Whether he is entitled for the
consequential relief of permanent injunction or in the
alternative for possession of the suit property?
H
150 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Finding
Para 46. The plaintiff in this suit also failed to establish his
title and possession in the suit property and as such, he is not
entitled for the reliefs of declaration or permanent injunction
or alternative relief of possession.
B 3) To what relief?
Finding
Para 49. In the result, the suit is dismissed with costs.
ORIGINAL SUIT NO. 141 OF 1984 – THIRD SUIT
C
Issues
1) Whether the suit property is part of Sy. Nos. 49 and 50 of
Rasoolpura Village as claimed by the plaintiffs or Whether it
is part of Sy. No. 9/13 of Khairatabad Village as claimed by
the defendants 1 and 2 or Whether it is part of Sy. No. 4J of
D
Bholakpur Village as claimed by the Government?
Finding
Para 50. The finding on Issue No. 1 in Original Suit No. 274
of 1983 holds good for this issue also.
E 2) Whether the plaintiff are entitled for declaration of their title
to the suit property and Whether they are entitled for the
consequential relief of permanent injunction or in the
alternative for possession of the suit property?
Finding
F
Para 52. The plaintiffs could establish their title in the suit
property and as such they are entitled for the reliefs of
declaration and possession. Though they were in possession
of the property originally, the Special Executive Magistrate
took possession of the property after the initiation of Section
G 145 Cr.P.C. proceedings. So the Government is bound to
surrender possession to the plaintiffs in this Suit.
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 151
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
3) To what relief? A
Finding
Para 56. In the result, the suit is decreed with costs, as
prayed for. The Government is erected to deliver possession
of the suit property to the plaintiffs within 2 months. However,
this finding shall not come in the way of the Urban Land B
Ceiling authorities to initiate proceedings to take possession
of the excess land, if any, from the plaintiffs (in Original Suit
No. 141 of 1984). Similarly, the Government is also at liberty
to acquire any portion of the suit land for public purposes by
following the necessary procedure and by paying the adequate C
compensation to the plaintiffs.”
3. The State filed appeal arising out of judgment and decree in
Original Suit No. 141 of 1984 (Third Suit). In the said appeal, an objection
was raised that the findings recorded on Issue No. 1 in Original Suit
Nos. 274 of 1983 and 276 of 1983 have to be treated as decree and
D
would operate as res judicata. The High Court while hearing such
objections in appeal framed the following two points for consideration:
“1) Whether the findings of the lower Court on issue No. 1 in
O.S. Nos. 274 and 276 of 1983 have to be treated as decree and
whether they operate as res judicata against the Government,
since the Government have not filed any appeals challenging the E
said findings?
2) Whether the Government of Andhra Pradesh was not required
to file appeals on the ground that no enforceable decree was
passed against it?”
4. The High Court held that decision on issues or any matter in F
controversy shall be deemed to be decree in view of reading of Order
XIV Rule 1 of the Code of Civil Procedure, 19081. The High Court
noticed the fact that in the third suit, there was a specific direction to
deliver possession of the suit property to the plaintiff within two months
but there is no specific direction against the Government in the first and G
the second suit but the fact remains that specific finding is given in those
cases that Government failed to establish that the suit land forms part of
Survey No.43 of Bholakpur Village. Thus, there is clear declaration of
right and title of the parties. The High Court held as under:
1
for short, ‘Code’ H
152 SUPREME COURT REPORTS [2019] 10 S.C.R.
A “In the present case, there is clear finding against the Government.
When there is a clear finding that the suit land does not form part
of Survey No. 43 of Bholakpur Village as claimed by the
Government, it was obligatory on the part of the Government to
file cross-objections. What Government can do is it can support
the findings of the lower court. The findings of the lower court
B
are that the suit land forms part of Survey No. 49 and 50 of
Rasoolpura Village. Obviously, the Government cannot support
such finding, because its case is that the suit land forms part of
Survey No. 43 of Bholakpur Village.
In the appeals filed by the plaintiffs, the main question that falls
C for consideration is whether the suit properties form part of Survey
No. 9/13 of Khairatabad village or it forms part of Survey Nos.
49 and 50 of Rasoolpura village. The question whether the suit
land forms part of Survey No. 43 of Bholakpur village as claimed
by the Government does not fall for consideration in the appeals
D in CCCA 1 of 1999 or CCCA No. 9 of 1999 i.e., appeals filed by
the plaintiffs in O.S. Nos.274 and 276 of 1983. Therefore, without
filing cross-objections the Government cannot challenge the
findings of the trial court.”
5. Mr. Vaidyanathan, learned senior counsel for the State relied
E upon judgments of this Court in Narhari & Ors. v. Shankar & Ors.2,
Ganga Bai v. Vijay Kumar & Ors.3, Banarsi & Ors. v. Ram Phal4,
Hardevinder Singh v. Paramjit Singh & Ors.5, Sri Gangai Vinayagar
Temple & Anr. v. Meenakshi Ammal & Ors.6, Chitivalasa Jute Mills
v. Jaypee Rewa Cement7, Ramesh Chandra v. Shiv Charan Dass8
and S. Nazeer Ahmed v. State Bank of Mysore & Ors.9 to contend
F that the defendants in the first and the second suit had no right to file an
appeal against the decree of dismissal of suits passed in such suits. The
appeal would not lie against the findings recorded when the decree is
only of dismissal of the suits. It is argued that the effect of amendment
2
AIR 1953 SC 419
G 3
(1974) 2 SCC 393
4
(2003) 9 SCC 606
5
(2013) 9 SCC 261
6
(2015) 3 SCC 624
7
(2004) 3 SCC 85
8
AIR 1991 SC 264
9
(2007) 11 SCC 75
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 153
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
in Order XLI Rule 22 of the Code vide Central Act No. 104 of 1976 is A
only to enable an aggrieved person to file cross objections but that does
not take away the right of an aggrieved person to support the decree of
dismissal of the suit in appeal on the grounds other than what weighed
with the learned trial court in dismissing the suit. It is contended that
appeal lies against the decree passed and not the judgment giving the
B
reasons to pass a decree. It is further contended that the State has a
right to agitate the findings on Issue No. 1 in terms of the provisions of
Order XLI Rule 33 of the Code as well, therefore, the findings recorded
on Issue No. 1 are not final so as to operate res judicata against the
decree in the third suit which is the subject matter of challenge by the
State. It is contended that the State has filed cross objections before C
hearing of the appeal though after the order of the High Court, thus, the
findings recorded on Issue No. 1 have not attained finality which can
operate as res judicata. It is contended that the judgments referred to
by the learned counsel for the respondents are in the cases where the
decree had attained finality. But none of the judgments referred to by
D
the learned counsel for the respondents pertains to a finding recorded in
a civil suit which was dismissed and is subject matter of challenge in
appeal by the plaintiff himself.
6. On the other hand, Mr. Dushyant Dave, learned senior counsel
for the respondents argued that there is a categorical finding recorded
by the trial court that land does not fall in part of Survey No. 43 of E
Bholakpur Village, as per the stand of the Appellants in all three suits,
therefore, it was mandatory for the defendants to impugn such findings
by way of an appeal in the first and second suit as well. Since the State
has not filed any appeal against the findings recorded in the first and the
second suit, the findings recorded therein will operate as res judicata F
and the appeal arising out of the third suit is barred by res judicata.
Learned counsel for the respondents relied upon the judgments of this
Court in Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.10,
Sheodan Singh v. Daryao Kunwar (Smt.)11, Lonankutty v. Thomman
& Anr.12, Premier Tyres Limited v. Kerala State Road Transport
Corporation13, Harbans Singh & Ors. v. Sant Hari Singh & Ors.14, G
10
1962 (3) SCR 759
11
1966 (3) SCR 300
12
(1976) 3 SCC 528
13
1993 Supp. (2) SCC 146
14
(2009) 2 SCC 526 H
154 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Ashok Nagar Welfare Association & Anr. v. R. K. Sharma & Ors.15,
Nirmala Bala Ghose v. Balai Chand Ghose16, Bhanu Kumar Jain
v. Archana Kumar and Another17.
7. Mr. Dave submits that the judgments referred to by the learned
counsel for the appellants are not applicable to the facts of the present
B case. He argued that res judicata applies not only to the decree but it
bars the Court to try any suit or issue in which the matter has been
directly and substantially in issue in former suit. It is, thus, contended
that principle of res judicata are not only against the final judgment and
decree but also in respect of any finding recorded in the suit.
C 8. Mr. Jai Savla, learned senior counsel, relied upon another
judgment of this Court in Govindammal (D) by LRs & Ors. v.
Vaidyanathan & Ors.18 to contend that plea of res judicata is applicable
even in respect of co-defendants.
9. Respondent No. 8 in the written submissions relies upon Sri
D Gangai Vinayagar Temple to contend that the filing of a Single Appeal
would lead to entire dispute becoming sub judice only if suits are
consolidated. Since, three suits in question were not consolidated,
therefore, non-filing of the appeal by the appellants in first and second
suit will operate as res judicata.
E 10. Learned counsel for the appellants has produced a photocopy
of the decree in the Original Suit No. 274 of 1983 which is to the effect
“that the suit be and the same is hereby dismissed”.
11. To appreciate arguments of the learned counsel for the parties,
certain statutory provisions from the Code need to be extracted before
F the judgments referred to by the learned counsel for the parties are
considered.
“2(9) “judgment” means the statement given by the Judge on the
grounds of a decree or order;
2(2) “decree” means the formal expression of an adjudication
G which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the
15
(2002) 1 SCC 749
16
1965 (3) SCR 550
17
(2005) 1 SCC 787
18
H (2018) 14 SCALE 198
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 155
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
matters in controversy in the suit and may be either preliminary or A
final. It shall be deemed to include the rejection of a plaint and the
determination of any question within section 144, but shall not
include –
(a) any adjudication from which an appeal lies as an appeal from
an order, or B
(b) any order of dismissal for default.
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 C
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.
*** ***
Order XLI Rule 22. Upon hearing, respondent may object to D
decree as if he had preferred a separate appeal
(1) Any respondent, though he may not have appealed from
any part of the decree, may not only support the decree 19[but
may also state that the finding against him in the Court below in
respect of any issue ought to have been in his favour; and may E
also take any cross-objection] to the decree which he could have
taken by way of appeal:
Provided he has filed such objection in the Appellate Court within
one month from the date of service on him or his pleader of notice
of the day fixed for hearing the appeal, or within such further time F
as the Appellate Court may see fit to allow.
19
[Explanation.- A respondent aggrieved by a finding of the Court
in the judgement on which the decree appealed against is based
may, under this rule, file cross-objection in respect of the decree
in so far as it is based on that finding, notwithstanding that by G
reason of the decision of the Court on any other finding which is
sufficient for the decision of the suit, the decree, is, wholly or in
part, in favour of that respondent.]
19
Inserted by Central Act No. 104 of 1976 H
156 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Order XLI Rule 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
B 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
C 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.
D
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
E 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
F which has been decided prior to the suit in question whether or
not it was instituted prior thereto.”
12. The High Court referred to various judgments in respect of
applicability of the principle of res judicata, therefore, non-filing of the
appeal by the State in the other two suits operates as res judicata. The
High Court referred to a judgment of this Court in Sheodan Singh
G
wherein, this Court held that once a decree passed in the suit attains
finality, it cannot be disturbed indirectly by adjudicating the very same
questions in another appeal. We find that the findings recorded by the
High Court are patently erroneous for the reasons recorded hereinafter.
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 157
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
Therefore, non-filing of the appeal by the State in the other two suits A
operates as res judicata in the third suit.
13. The learned trial court had clubbed all the three suits and that
common evidence was recorded, when it recorded the following fact:
“All the above three suits have been clubbed and a joint trial has
been held. O.S.No.274/83 has been taken as the leading suit and B
the evidence recorded in that suit has been taken as the evidence
for the remaining two suits also. The parties to all the three suits
can be divided into three groups…...”
14. Learned counsel for the respondents has tried to draw
distinction between an order of consolidation of suits and the order where C
a common judgment is rendered in different suits. In Sri Gangai
Vinayagar Temple, the Court referred to judgment in Chitivalasa Jute
Mills. However, we find that distinction drawn by learned counsel for
the respondents is not tenable in law. Chitivalasa Jute Mills is a case
where one suit was filed at Reva in Madhya Pradesh and another in D
Vishakhapatnam. The Court noticed that claim in one suit is a defense
in another suit, therefore, the order was passed for transfer of a
subsequent suit filed at Reva to Vishakhapatnam.
15. In the present case, evidence have been recorded only in one
suit as all the three suits have been clubbed together. In view of the said E
fact, we find that merely the word consolidation has not been used by
the learned trial court, therefore, it will not be a case of consolidation of
suits but of separate trials.
16. In Banarsi, the provisions of Order XLI Rule 22 of the Code
as it existed before and after the amendment in 1976 as well as Order F
XLI Rule 33 of the Code have been considered. The said judgment
arises out of a fact where a suit for specific performance of an agreement
was filed by the respondent in appeal before this Court. The appellants
also filed a suit seeking cancellation of the agreement, the basis of the
suit for specific performance. The learned trial court ordered the
appellants to deposit a sum of Rs.2,40,000/- but the decree for specific G
performance was not granted. Two appeals were taken up for hearing
preferred by the appellants by the learned Additional District Judge.
Both the appeals were dismissed but without any cross objections or an
appeal, the Court decreed the suit for specific performance filed by the
H
158 SUPREME COURT REPORTS [2019] 10 S.C.R.
A plaintiffs. The second appeal before the High Court was dismissed. It
was held that the First Appellate Court committed no error of law
exercising the powers under Order XLI Rule 33 of the Code to pass a
decree for specific performance.
17. This Court examined the question as to whether decree for
B specific performance could be granted once declined by the trial court
without filing any appeal or cross-objections. The Court held as under:
“8. Sections 96 and 100 CPC make provision for an appeal being
preferred from every original decree or from every decree passed
in appeal respectively; none of the provisions enumerates
C the person who can file an appeal. However, it is settled by a
long catena of decisions that to be entitled to file an appeal the
person must be one aggrieved by the decree. Unless a person is
prejudicially or adversely affected by the decree he is not entitled
to file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC
1470 : (1967) 3 SCR 153] , Jatan Kumar Golcha v. Golcha
D Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay
Kumar[(1974) 2 SCC 393] .) No appeal lies against a mere finding.
It is significant to note that both Sections 96 and 100 CPC provide
for an appeal against decree and not against judgment.
9. Any respondent though he may not have filed an appeal from
E any part of the decree may still support the decree to the extent
to which it is already in his favour by laying challenge to
a finding recorded in the impugned judgment against
him…………………………A party who has fully succeeded in
the suit can and needs to neither prefer an appeal nor take any
F cross-objection though certain finding may be against him. Appeal
and cross-objection — both are filed against decree and not
against judgment and certainly not against any finding recorded
in a judgment. This was the well-settled position of law under the
unamended CPC.”
G 18. This Court while considering the amendments made in the
Code in the year 1976, held that even under the amended provisions of
Order XLI Rule 22 of the Code, a party in whose favour the decree
stands in its entirety is neither entitled nor obliged to prefer any cross
objections. However, by an amendment in Order XLI Rule 22 of the
Code, it is permissible to file cross objections against the finding. The
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 159
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
respondent may defend himself without filing any cross objections to the A
extent to which decree is in his favour. The Court held as under:
“10. The CPC amendment of 1976 has not materially or
substantially altered the law except for a marginal difference.
Even under the amended Order 41 Rule 22 sub-rule (1) a party in
whose favour the decree stands in its entirety is neither entitled B
nor obliged to prefer any cross-objection. However, the insertion
made in the text of sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference which has
resulted we will shortly state. A respondent may defend himself
without filing any cross-objection to the extent to which decree is
in his favour; however, if he proposes to attack any part of the C
decree he must take cross-objection. The amendment inserted by
the 1976 amendment is clarificatory and also enabling and this
may be made precise by analysing the provision. There may be
three situations:
(i) The impugned decree is partly in favour of the appellant D
and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though
an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all E
the issues have also been answered in favour of the respondent
but there is a finding in the judgment which goes against the
respondent.
11. In the type of case (i) it was necessary for the respondent to
file an appeal or take cross-objection against that part of the decree F
which is against him if he seeks to get rid of the same though that
part of the decree which is in his favour he is entitled to support
without taking any cross-objection. The law remains so post-
amendment too. In the type of cases (ii) and (iii) pre-amendment
CPC did not entitle nor permit the respondent to take any cross-
objection as he was not the person aggrieved by the decree. Under G
the amended CPC, read in the light of the explanation, though it is
still not necessary for the respondent to take any cross-objection
laying challenge to any finding adverse to him as the decree
is entirely in his favour and he may support the decree without
H
160 SUPREME COURT REPORTS [2019] 10 S.C.R.
A cross-objection; the amendment made in the text of sub-rule (1),
read with the explanation newly inserted, gives him a right to take
cross-objections to a finding recorded against him either while
answering an issue or while dealing with an issue. The advantage
of preferring such cross-objection is spelt out by sub-rule (4). In
spite of the original appeal having been withdrawn or dismissed
B
for default, the cross-objection taken to any finding by the
respondent shall still be available to be adjudicated upon on merits
which remedy was not available to the respondent under the
unamended CPC. In the pre-amendment era, the withdrawal or
dismissal for default of the original appeal disabled the respondent
C to question the correctness or otherwise of any finding recorded
against the respondent.”
19. The present is a case where the decree is of dismissal of suit
therefore, entirely in favour of the State and not executable. Though an
issue has been decided against the State as falling within second and
D third situation delineated by this Court. This Court held that in the absence
of cross appeals or cross objections, the First Appellate Court did not
have the jurisdiction to modify the decree that is to grant decree for
specific performance which was not granted by the trial court.
20. The Court did not find any merit in the argument that the
E Appellate Court was not powerless to grant decree as such decree has
been granted in terms of Order XLI Rule 33 of the Code. The Court
held as under:
“15. … While allowing the appeal or otherwise interfering with
the decree or order appealed against, the appellate court may
F pass or make such further or other, decree or order, as the case
would require being done, consistently with the findings arrived at
by the appellate court. The object sought to be achieved by
conferment of such power on the appellate court is to avoid
inconsistency, inequity, inequality in reliefs granted to similarly
placed parties and unworkable decree or order coming into
G existence. The overriding consideration is achieving the ends of
justice. Wider the power, higher the need for caution and care
while exercising the power. Usually the power under Rule 33 is
exercised when the portion of the decree appealed against or the
portion of the decree held liable to be set aside or interfered by
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 161
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
the appellate court is so inseparably connected with the portion A
not appealed against or left untouched that for the reason of the
latter portion being left untouched either injustice would result or
inconsistent decrees would follow. The power is subject to at least
three limitations: firstly, the power cannot be exercised to the
prejudice or disadvantage of a person not a party before the court;
B
secondly, a claim given up or lost cannot be revived; and thirdly,
such part of the decree which essentially ought to have been
appealed against or objected to by a party and which that party
has permitted to achieve a finality cannot be reversed to the
advantage of such party. A case where there are two reliefs
prayed for and one is refused while the other one is granted and C
the former is not inseparably connected with or necessarily
depending on the other, in an appeal against the latter, the former
relief cannot be granted in favour of the respondent by the appellate
court exercising power under Rule 33 of Order 41.”
21. Such view of the Court has been followed in a judgment in D
Hardevinder Singh. The said judgment arises out of a suit filed for
possession of the suit land, challenging the Will said to be executed in
favour of the defendants. The suit for joint possession was decreed
holding that the Will is surrounded by suspicious circumstances and that
the suit land was joint Hindu family property. In an appeal, the First
Appellate Court recorded a finding that the property of the deceased E
Shiv Singh was self-acquired and that the Will in favour of defendant
Nos. 1 to 4 was validly executed. The First Appellate Court dismissed
the suit for the reason that there is a settlement between the parties.
The defendant No. 5, brother of the Plaintiff who had similar interest as
that of the plaintiff, aggrieved against the said judgment and decree F
passed by the First Appellate Court filed the second appeal, which was
dismissed as not maintainable. In these circumstances, this Court held
that a person has a right to maintain an appeal if such person is
prejudicially or adversely affected by a decree. It was held that defendant
No. 5, brother of the plaintiff benefited from the decree granted by the
trial court but the plaintiff has settled the dispute with defendant Nos. 1 G
to 4, the rights of defendant No. 5 were unsettled and the benefit accrued
in his favour became extinct, therefore, he had suffered a legal injury
which could be challenged in second appeal. With the said finding, the
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162 SUPREME COURT REPORTS [2019] 10 S.C.R.
A judgment of the High Court was set aside and the matter was remitted
to the High Court to decide afresh. This Court held as under:
“21. After the 1976 Amendment of Order 41 Rule 22, the insertion
made in sub-rule (1) makes it permissible to file a cross-objection
against a finding. The difference is basically that a respondent
B may defend himself without taking recourse to file a cross-objection
to the extent the decree stands in his favour, but if he intends to
assail any part of the decree, it is obligatory on his part to file the
cross-objection. In Banarsi v. Ram Phal [(2003) 9 SCC 606 : AIR
2003 SC 1989] , it has been observed that the amendment inserted
in 1976 is clarificatory and three situations have been adverted to
C therein. Category 1 deals with the impugned decree which is partly
in favour of the appellant and partly in favour of the respondent.
Dealing with such a situation, the Bench observed that in such a
case, the respondent must file an appeal or take cross-objection
against that part of the decree which is against him if he seeks to
D get rid of the same though he is entitled to support that part of the
decree which is in his favour without taking any cross-objection.
In respect of two other categories which deal with a decree entirely
in favour of the respondent though an issue had been decided
against him or a decree entirely in favour of the respondent where
all the issues had been answered in his favour but there is a finding
E in the judgment which goes against him, in the pre-amendment
stage, he could not take any cross-objection as he was not a person
aggrieved by the decree. But post-amendment, read in the light
of the Explanation to sub-rule (1), though it is still not
necessary for the respondent to take any cross-objection
F laying challenge to any finding adverse to him as the decree
is entirely in his favour, yet he may support the decree without
cross-objection. It gives him the right to take cross-objection
to a finding recorded against him either while answering an
issue or while dealing with an issue. It is apt to note that after
the amendment in the Code, if the appeal stands withdrawn or
G dismissed for default, the cross-objection taken to a finding by the
respondent would still be adjudicated upon on merits which remedy
was not available to the respondent under the unamended Code.”
(emphasis Supplied)
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 163
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
22. The judgment in Sri Gangai Vinayagar Temple is relied upon A
by both the parties. Learned counsel for the appellants relies upon para
25 of the order whereas, counsel for the respondents relies upon para 27
of the order. Both the paragraphs read as under:
“25. On the issue of applicability of res judicata in cases where
two or more suits have been disposed of by one common judgment B
but separate decrees, and where the decree in one suit has been
appealed against but not against the others, various High Courts
have given divergent and conflicting opinions and decisions……….
……..Without adverting to the details of those cases, it is sufficient
to note that the hesitancy or reluctance to the applicability of the C
rigorous of res judicata flowed from the notion that Section 11 of
the Code refers only to “suits” and as such does not include
“appeals” within its ambit; that since the decisions arrived in the
connected suits were articulated simultaneously, there could be
no “former suit” as stipulated by the said section; that substance,
issues and finding being common or substantially similar in the D
connected suits tried together, non-filing of an appeal against one
or more of those suits ought not to preclude the consideration of
other appeals on merits; and that the principle of res judicata would
be applicable to the judgment, which is common, and not to the
decrees drawn on the basis of that common judgment. E
xxx xxx xxx
27. Procedural norms, technicalities and processal 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 F
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 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 vs. Jaypee Rewa G
Cement (2004) 3 SCC 85. 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.
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164 SUPREME COURT REPORTS [2019] 10 S.C.R.
A While so opining we do not intend to whittle down the principle
that appeals are not expected to be filed against every 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
B
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
C 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. Statutory law and 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
D
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.”
23. It may be noticed that separate decree is required to be
preferred in each suit even though the suits are consolidated. The three-
E Judge Bench in Sri Gangai Vinayagar Temple has categorically held
that where a common judgment has been delivered in cases in which
consolidation orders have been passed, the filing of an appeal leads to
the entire dispute becoming sub judice again. The aforesaid judgment
arises out of the fact whether tenant has filed a suit to protect its
F possession during the lease period which was coming to an end on
January 1, 1983, claiming injunction not specifically challenging the
alienation by the trustees of a public trust. The trustees have filed two
separate suits for claiming arrears of rent, one for claiming Rs. 268/-
and another for Rs. 2600/.
G 24. The tenant’s suit and the suit for the recovery of Rs. 2600/-
were dismissed. Only one appeal was preferred by the tenant against
the decree passed in the suit for recovery of Rs. 268/-. In these
circumstances, it was held that since the claim of the tenant in his suit
was substantially in respect of the right of the trustees to alienate the
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 165
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
property of the trust as alleged by the tenant, which is the issue in the A
other suits as well, therefore, the decree in the suit for injunction filed by
the plaintiff would operate as res judicata. But in the present case, an
appeal in the first and second suit is pending in which the appellant has
right to support decree in terms of Order XLI Rules 22 and 33 of the
Code.
B
25. Learned counsel for the respondents strongly relies upon a
Constitution Bench judgment of this Court in Badri Narayan Singh to
contend that the findings recorded in one appeal operate as res judicata
in the second appeal. To appreciate such argument, some facts leading
to the said judgment need to be mentioned. The election of the appellant
was challenged before the Election Tribunal on the ground that the C
appellant was holding an office of profit and, therefore, it is against the
provisions of Section 7 of the Representation of the People Act, 1951.
There was allegation that appellant had also committed corrupt practices.
On the other hand, respondent filed a petition praying for the declaration
that the election of the appellant was void and also claimed declaration D
that he was duly elected having polled more votes after appellant- elected
candidate. The Election Tribunal found that the appellant was not holder
of office of profit but held that he is guilty of corrupt practices. The
election of the appellant was set aside but did not grant the declaration
that the respondent was duly elected candidate. The appellant filed
Election Appeal No. 7 of 1958 whereas the respondent filed Election E
Appeal No. 8 of 1958 in the High Court against the order of the Election
Tribunal. The appeal filed by the appellant was dismissed holding that he
was holding office of profit but has not indulged in corrupt practice
whereas the appeal filed by the respondent was allowed by a common
judgment declaring the respondent to be duly elected. The appellant filed F
appeal before this Court only against the order in Appeal No. 8 of 1958.
All the grounds of the appeal relate to the finding of the High Court in
Appeal No. 7 of 1958. In appeal before this Court, a preliminary objection
was taken that no appeal was preferred by the appellant against the
order of the High Court in Appeal No. 7 of 1958. The Court distinguished
the earlier judgment in Narhari. It held that though Appeal Nos. 7 and G
8 of 1958 arose out of one proceeding but subject matter of each appeal
was different, therefore, the final judgment would operate as res judicata.
The relevant findings read as under:
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166 SUPREME COURT REPORTS [2019] 10 S.C.R.
A “14. It is true that both the Appeals Nos. 7 and 8 before the High
Court arose out of one proceeding before the Election Tribunal.
The subject-matter of each appeal was, however, different. The
subject-matter of Appeal No. 7 filed by the appellant related to
the question of his election being bad or good, in view of the
pleadings raised before the Election Tribunal. It had nothing to do
B
with the question of right of Respondent 1 to be declared as duly
elected candidate……….. The finding about his holding an
office of profit served the purpose of both the appeals, but
merely because of this the decision of the High Court in each
appeal cannot be said to be one decision. The High Court
C came to two decisions. It came to one decision in respect of the
invalidity of the appellant’s election in Appeal No. 7. It came to
another decision in Appeal No. 8 with respect to the justification
of the claim of Respondent 1 to be declared as a duly elected
candidate, a decision which had to follow the decision that the
election of the appellant was invalid and also the finding that
D
Respondent 2, as Ghatwal, was not a properly nominated
candidate. 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
E 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.”
(Emphasis Supplied)
F 26. The said judgment has no applicability to the facts of the present
case as the decree in Civil Suit No. 274 of 1983 or 276 of 1983 has not
attained finality and the same are still subject matter of appeal before
the First Appellate Court wherein, the findings recorded by the trial court
can be set aside while maintaining ultimate decree of dismissal of the
G suit. In Badri Narayan Singh, the decision in an appeal became final,
holding the appellant to be not duly elected candidate. The Appeal No. 8
of 1958 was in respect of declaration that the respondent shall be deemed
to be elected candidate. Therefore, in the absence of finality of judgments,
there cannot be any question of such finding binding in the third suit.
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 167
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
27. The Narhari arises out of a suit for possession of 1/3 share of A
land from the 2 sets of defendants. The suit was partly decreed. The
trial court decreed the suit; however, two appeals were preferred by
two sets of defendants. Both the appeals were allowed and the suit was
dismissed. The plaintiff filed one appeal after filing the consolidated court
fee for the whole suit and by impleading all the defendants as respondents.
B
The argument raised was that the plaintiff has filed only one appeal,
therefore, the findings recorded in the other appeal will operate res
judicata in the second appeal preferred by the plaintiff. The Court held
as under:
“5. …..The question of res judicata arises only when there are
two suits. Even when there are two suits, it has been held that a C
decision 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 D
application of the principle of res judicata. The same judgment
cannot remain effective just because it was ap- pealed against
with a different number or a copy of it was attached to a different
appeal. The two decrees in sub- stance are one. Besides, the
High Court was wrong in not giving to the appellants the benefit
of section 5 of the Limitation Act because there was conflict of E
decisions regarding this question not only in the High Court of the
State but also among the different High Courts in India……”
28. Ganga Bai is the judgment arising out of the proceeding prior
to amendment of Order XLI Rule 22 of the Code. The High Court held
that the first appeal filed by defendant Nos. 2 and 3 was not maintainable F
even though the suit was wholly dismissed against them. The Court held
that right of appeal is a creature of statute and that it is not inherent
right. It was held as under:
“17. These provisions show that under the Code of Civil Procedure,
an appeal lies only as against a decree or as against an order G
passed under rules from which an appeal is expressly allowed by
Order 43 Rule 1. No appeal can lie against a mere finding for the
simple reason that the Code does not provide for any such appeal.
It must follow that First Appeal No. 72 of 1959 filed by Defendants
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168 SUPREME COURT REPORTS [2019] 10 S.C.R.
A 2 and 3 was not maintainable as it was directed against a mere
finding recorded by the trial court.
xx xx xx
21. Thus, the appeal filed by Defendants 2 and 3 being directed
against a mere finding given by the trial court was not
B maintainable…”
29. In Ramesh Chandra, the Court held that one of the tests to
ascertain if a finding operates as res judicata is that the party aggrieved
could challenge it by way of an appeal. The Court held as under:
C “3. One of the tests to ascertain if a finding operates as res judicata
is if the party aggrieved could challenge it. Since the dismissal of
appeal or the appellate decree was not against defendants. 2 and
3 they could not challenge it by way of appeal. Even assuming
that defendant 1 could challenge the finding that liability of rent
was of defendants 2 and 3 as they were in possession, he did not
D file any written statement in the trial court raising any dispute
between himself and defendants 2 and 3. There was thus no
occasion for the appellate court to make the observation when
there was neither pleading nor evidence……”
30. In another judgment reported as S. Nazeer Ahmed, it has
E been held that the appellant without filing a memorandum of cross-
objections in terms of Order XLI Rule 22 of the Code, could challenge
the finding of the trial court. The respondent in an appeal is entitled to
support the decree of the trial court even by challenging any of the
findings that might have been rendered by the trial court against himself.
F For supporting the decree passed by the trial court, it is not necessary
for a respondent in the appeal, to file a memorandum of cross- objections
challenging a particular finding that is rendered by the trial court against
him when the ultimate decree itself is in his favour. The court held as
under:
“7. The High Court, in our view, was clearly in error in holding
G
that the appellant not having filed a memorandum of cross-
objections in terms of Order 41 Rule 22 of the Code, could not
challenge the finding of the trial court that the suit was not barred
by Order 2 Rule 2 of the Code. The respondent in an appeal is
entitled to support the decree of the trial court even by challenging
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 169
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
any of the findings that might have been rendered by the trial A
court against himself. For supporting the decree passed by the
trial court, it is not necessary for a respondent in the appeal, to file
a memorandum of cross-objections challenging a particular finding
that is rendered by the trial court against him when the ultimate
decree itself is in his favour. A memorandum of cross-objections
B
is needed only if the respondent claims any relief which had been
negatived to him by the trial court and in addition to what he has
already been given by the decree under challenge. We have
therefore no hesitation in accepting the submission of the learned
counsel for the appellant that the High Court was in error in
proceeding on the basis that the appellant not having filed a C
memorandum of cross-objections, was not entitled to canvas the
correctness of the finding on the bar of Order 2 Rule 2 rendered
by the trial court.”
31. Mr. Dave vehemently argued that res judicata in terms of
Section 11 of the Code is not about a decree but to a finding in the D
former suit. It is argued that the first suit and second suit are the former
suits in which the findings were written against the State, therefore,
such findings will operate res judicata. The said argument proceeds on
the basis that the Court would mean the High Court and, therefore,
finding in the first and second suit would bar the subsequent proceedings
arising out of the third suit in appeal. We find that such an argument is E
not tenable. As mentioned above, that the decree of dismissal of the
first and second suit has not attained finality which are under challenge
by the plaintiffs and the defendants-State are entitled to dispute findings
on Issue No. 1 even without filing cross objections or in terms of Order
XLI Rule 33 of the Code that the decree of dismissal of suit on the F
grounds other than what weighed with the learned trial court. All the
issues are open for consideration before the First Appellate Court.
32. Section 11 and Explanation I of the Code would be applicable
in subsequent proceedings between the same parties or between the
parties under whom they or any of them claimed under the same title. G
But the findings in the first and second suit will not operate as res judicata
as such findings are subject matter of challenge in the appeals filed by
the plaintiffs in their respective suits. All the three suits have been decided
together and the three appeals pending against such judgment and
decrees. Therefore, it cannot be said that the first and the second suit
H
170 SUPREME COURT REPORTS [2019] 10 S.C.R.
A are the former suits as the decree passed therein has not attained finality.
The findings recorded therein will not, therefore, operate as res judicata
as the State is not obliged to challenge findings on Issue No.1 in the first
and second suit even after the amendment of Order XLI Rule 22 of the
Code.
B 33. This Court in Lonankutty has examined the applicability of
the principles of Section 11 in a matter wherein two suits were filed.
Civil Suit No. 666 of 1954 was filed by the appellant for an injunction
from taking water from Survey No. 673 and discharge the water back
through Survey No. 673 and for a mandatory injunction directing them
to demolish the bund and close the sluice gates. The respondents filed
C Civil Suit No. 5 of 1957 for an injunction restraining the appellant from
trespassing on the bund constructed by them and for preventing the
appellant from interfering with their right to take water from Survey No.
673 and to discharge the water back through that land. The second was
subsequent suit. The suit of the appellant was decreed. However, the
D suit of the respondents was dismissed but decreed to the extent of the
right claimed regarding the agriculture use. The result of decrees passed
in two suits was that the respondents could take water from the land of
the appellant and discharge for agricultural purposes only and not for
fishing. Both filed two appeals arising out of two suits. However, all the
appeals were dismissed. No appeal came to be filed arising out of second
E suit filed by the respondents. It is in these circumstances it was held that
the suit filed by the respondents, though after the suits of the plaintiff,
would be deemed to be former suits as the decree in the said suit has
attained finality. The Court held as under:
“19. Respondents did not file any further appeal against the decree
F 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 AS No. 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
G arising out of the respondents’ suit became final and conclusive.
That decision, not having been appealed against, could not be
reopened in the second appeal arising .out of the appellant’s suit…
xx xx xx
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 171
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
21. In its remanding judgment dated July 8, 1964, by which the A
plea of res judicata was repelled, the High Court relied principally
on the decision of this Court in Narhari v. Shankar [AIR 1953
SC 419 : 1950 SCR 754;] . 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
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 should have filed 2 separate appeals and since one of C
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
D
trial, one finding, and one decision, there need not be two appeals
even though two decrees may have been drawn up”. In our case,
there were 2 suits and since the appellate decree in one of the
suits had become final, the issues decided therein could not be
reopened in the second appeal filed against the decree passed in
an appeal arising out of another suit. This precisely is the ground E
on which Narhari case was distinguished by this Court
in Sheodan Singh v. Smt Daryao Kunwar [AIR 1966 SC 1332:
(1966) 3 SCR 300]. 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
F
as res judicata in the other appeal.”
34. The reliance of Mr. Dave on the judgment in Ashok Nagar
Welfare Association is not relevant for the present case as question
examined was the scope of interference in the Special Leave Petition.
That was a case whether an ex parte decree granted in two suits by the
trial court was set aside in appeal. The Special Leave Petition was G
directed against such order. This Court has rightly not interfered with
the setting aside the ex parte judgment. Bhanu Kumar Jain is also a
case delineating the remedies available to a defendant in the event of an
ex parte decree granted. The said judgment is not applicable to the
facts of the present case. H
172 SUPREME COURT REPORTS [2019] 10 S.C.R.
A 35. Another judgment referred to by Mr. Dave is Nirmala Bala
Ghose. In the said case, the decree against deity had attained finality in
two suits. It was held that it is not open to another defendant to challenge
the decree insofar as it is against deities. The Court has held as under:
“23. In this appeal, the two deities are also impleaded as party
B respondents. But the deities have not taken part in the proceeding
before this Court, as they did not in the High Court. The decree
against the two deities has become final, no appeal having been
preferred to the High Court by the deities. It is not open to Nirmala
to challenge the decree insofar as it is against the deities, because
she does not represent the deities. The rights conferred by the
C deed Ext. 11 upon Nirmala are not affected by the decree of the
trial court. She is not seeking in this appeal to claim a mere exalted
right under the deed for herself, which may require re-examination
even incidentally of the correctness of the decision of the trial
court and the High Court insofar as it relates to the title of the
D deities. It was urged, however, that apart from the claim which
Nirmala has made for herself, the Court has power and is indeed
bound under Order 41 Rule 33 Code of Civil Procedure to pass a
decree, if on a consideration of the relevant provisions of the deed,
this Court comes to the conclusion that the deed operates as an
absolute dedication in favour of the two deities. Order 41 Rule
E 313, insofar as it is material, provides:
“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
F 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:”
The rule is undoubtedly expressed in terms which are wide, but it
G 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
H
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY 173
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
with the opinion of the Court appealed from and in adjusting the A
right claimed by the appellant it is necessary to grant relief to a
person who has not appealed, the power conferred by Order 41
Rule 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
B
opinion of the Court appealed from.”
36. We find that the High Court has failed to draw the distinction
between the decree and a finding on an issue. It is the decree against
which an appeal lies in terms of Section 96 of the Code. Decree in terms
of Section 2(2) of the Code means formal expression of an adjudication
conclusively determining the rights of the parties. The defendants-State C
could not file an appeal against a decree which was of a dismissal of a
suit simpliciter. The findings on Issue No. 1 against the State could be
challenged by way of cross-objections in terms of amended provisions
of Order XLI Rule 22 of the Code but such filing of cross-objections is
not necessary to dispute the findings recorded on Issue No. 1 as the D
defendants have a right to support the ultimate decree passed by the
trial court of dismissal of suit on grounds other than which weighed with
the learned trial court. Even in terms of Order XLI Rule 33 of the Code,
the Appellate Court has the jurisdiction to pass any order which ought to
have been passed or made in proceedings before it.
E
37. As per facts on record, Original Suit Nos. 274 of 1983 and
276 of 1983 have been dismissed. The plaintiffs are in appeal in both the
suits before the First Appellate Court. Therefore, such decree including
the finding on Issue No. 1 has not attained finality as the Appellate Court
is seized of the entire controversy including the findings of fact on Issue
No. 1. The defendants have a right to dispute such findings by filing F
cross-objections under Order XLI Rule 22 of the Code as amended in
the year 1976 or even in the exercise of the powers conferred on the
Appellate Court under Order XLI Rule 33 of the Code.
38. The decree is of dismissal of the suit, whereas, the reasons
for passing such decree is judgment as defined in Section 2(9) of the G
Code. In terms of Section 11 read with Explanation I, the issue in a
former suit will operate as res judicata only if such issue is raised in a
subsequent suit. Since, the issue of title has not attained finality, therefore,
it is not a former suit to which there can be any application of Section 11.
H
174 SUPREME COURT REPORTS [2019] 10 S.C.R.
A 39. In view of the above, we allow the present appeals, set aside
the order passed by the High Court in the first appeal filed by the State,
as the findings on Issue Nos. 1 and 2 in the first and second suit do not
operate as res judicata. The pending applications, if any, shall stand
disposed of.
B 40. In view of the orders in the appeals, Contempt Petition (Civil)
No. 204 of 2014 is disposed of.
Divya Pandey Appeals allowed.
C
D
E
F
G
H
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