Supreme Court of India was dealing with the petition challenging the judgment dated 04.07.2018,passed by High Court of Uttarakhand at Nainital, preferred by appellant herein against the ‘commonjudgment’ dated 16.04.2008 passed by Trial Court.
Brief Facts:
The respondents prayed for grant of ‘mandatory injunction’ against the appellant, making prayer to remove and demolish the walls on the concerned passage and restoring the passage to its original width of 13 ft. and filling up the ditch near the gate of respondent no.2. The appellant prayed for ‘permanent injunction’ restraining the respondents from providing or creating any passage through the property of appellant after demolishing the existing passage. Since both the suits involved grievances pertaining to the passage of the same land, therefore by consent order dated 18.08.2006 both were consolidated.The aforesaid consolidated suits weredisposedofby the Trial Court.The appellantpreferred First Appeal before the High Courtchallenging both the decrees. The appellant also preferred an application being CLMA and sought permission tofile a single appeal assailing the common judgment dated16.04.2008 alongwith two separate decrees.The High Court without passing any order on the saidCLMA, at the time of hearing of the appeal, accepted thepreliminary objection regarding maintainability of single firstappeal without entering into the merits of the case.
Appellant’s Contention:
Learned counsel for the appellant submitted that the essence of rule of res-judicatais that the twoproceedings should be so independent of each other that thetrial of one cannot be confused with trial of other suit, butwhere two suits having common issue were tried togetherand disposedofvide single judgment, can they be said to betwo distinct and independent trials. It was argued that in effect, only one judgment was passed in the trial and suitswere not clubbed but were consolidated for all purposes.
Respondent’s Contention:
Learned Counsel for the respondent submitted that Consolidation of suits was done only for evidence and it doesnot mean that one appeal can be preferred since suits stillretain their separate identity. Even assuming that theconsolidation was for all purposes, yet the procedure forpreferring an appeal cannot be waived or bypassed. It was argued that since the day of notice in first appeal, objection has beenraised for filing only one appeal and still the said defect wasnot rectified by the appellant.
SC’s Observations:
After hearing both the sides SC looked into Section 96 of CPC, which provides for filing of an appeal from thedecree by any Court exercising original jurisdiction to the Courtauthorized to hear appeals from the decisions of such Courts.
SC stated that an appeal is a continuation of the proceedingsof the original court. Ordinarily, in the first appeal, the appellatejurisdiction involves a rehearingon law as well as on fact asinvoked by an aggrieved person. The first appeal is a valuableright of the appellant and therein all questions of fact and law areopen for consideration by reappreciatingthe material andevidence. Therefore, the first appellate court is required toaddress on all the issues and decide the appeal assigning validreasons either in support or against by reappraisal.The court offirst appeal must record its findings dealing all the issues,considering oral as well as documentary evidence led by theparties.
SC 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 No.411 of 1989.
SC further stated that it is a tritelaw that the procedural defect may fall within the purview ofirregularity and capable of being cured, but it should not beallowed to defeat the substantive right accrued to the litigantwithout affording reasonable opportunity. Therefore, non-adjudicationof the CLMA application, andupholding the preliminary objection of non-maintainabilityof oneappeal by High Court has caused serious prejudice to theappellant.
SC Held:
After evaluating submissions made by both the parties the SC held that “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. Resultantly, we allow this appeal and remand the matter to the High Court with a request to decide the CLMA No.4365/2008, prior to deciding the preliminary objection of maintainability of one appeal.”
Case Title: M/S Ramnath Exports Pvt. Ltd. v. Vinita Mehta &Anr.
Bench: J. Indira Banerjee and J. J.K. Maheshwari
Citation: CIVIL APPEAL NO. 4639 OF 2022
Decided on: 5th July, 2022
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