Himachal Pradesh High Court
Date Of Decision: 9.7.2025 vs Pawan Kumar Negi on 9 July, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:22347
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
RSA No. 421 of 2008
.
Date of decision: 9.7.2025
Himachal Pradesh State Electricity Board. ....Appellant.
Versus
Pawan Kumar Negi. ....Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Ms.Sunita Sharma, Senior Advocate, with
Mr.Dhananjay Sharma and Mr.Surinder
Kumar, Advocates.
For the Respondent : Mr.Raj Negi and Mr.Rajinder Singh
Thakur, Advocates.
Vivek Singh Thakur, Judge (oral)
This appeal has been preferred by Himachal Pradesh State
Electricity Board (herein after referred to as Board) against judgment and
decree dated 26.5.2008 passed by District Judge Kinnaur at Rampur
Bushahr in Civil Appeal No. 11 of 2007, titled as the Himachal Pradesh
State Electricity Board Vs. Pawan Kumar Negi, whereby appeal preferred
by present appellant against judgment and decree dated 19.4.2007
passed by Civil Judge (Senior Division), Kinnaur in Civil Suit No. 06-R/1
of 2004/56-1 of 2005/2004, titled as Pawan Kumar Negi Vs. The
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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Himachal Pradesh State Electricity Board, has been affirmed by passing
a common judgment and decree in two appeals, i.e. Civil Appeal No. 11
of 2007, titled as The Himachal Pradesh State Electricity Board Vs.
.
Pawan Kumar Negi and Civil Appeal No. 21 of 2007, titled as Pawan
Kumar Negi Vs. The Himachal Pradesh State Electricity Board.
2. Suit of the plaintiff (Pawan Kumar Negi) for damages on
account of death of sheep and goats due to fault and lapse on the part of
Board in maintaining its transmission line, was partly decreed in following
terms:- r
"27. As per my findings on issues above suit of plaintiff, Shri Pawan
Kumar, for damages is partly decreed and is held entitled to
Rs.1,26,000/- at the rate of Rs.2,000/- per dead animal (63 sheep and
goats). He is further entitled to interest at the rate of 6% pr annum
from date of suit till the final payment is made. The suit is decreed
against defendant No.1, H.P.S.E.B. only since the individual
negligence of defendant No. 2 Assistant Engineer is not proved. The
suit is decreed with proportionate costs against defendant No. 1
Decree sheet be prepared accordingly. File after its due completion be
consigned to record room."
3. Feeling aggrieved by the aforesaid judgment and decree,
defendant-Board preferred Civil Appeal No. 11 of 2007. Cross-
objections preferred by plaintiff for enhancement of damages were
registered as Civil Appeal No. 21 of 2007, titled as Prem Chand Negi Vs.
The Himachal Pradesh State Electricity Board.
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4. Both appeals, i.e. Civil Appeal No. 11 of 2007 and Civil
Appeal No. 21 of 2007 were decided together by passing a common
judgment and decree, whereby appeal preferred by the Board as well as
.
Cross Objection preferred by plaintiff were dismissed and common
decree in Appeal No. 11 of 2007 and Cross Objection (Civil Appeal No.
21 of 2007) was drawn.
5. The Electricity Board has filed present appeal only against
judgment and decree dated 26.5.2008 passed in Civil Appeal No. 11 of
2007. Neither Board nor plaintiff has preferred appeal against even
dated judgment dated 26.5.2008 passed in Civil Appeal No. 21 of 2007.
Judgment dated 26.5.2008 rendered in both appeals is common with
common findings, which are inseparable. Decree in appeals is also
common.
6. In this regard ration of law laid down by Division Bench of
this High Court in Ramesh Chand Vs. Om Raj and others, reported in
2022 (2) Shim. LC 1145, shall be relevant, wherein it has been held as
under:-
"42. The principles deducible from the afore-discussed law can be
summarized as follows:-
(i) When two suits are consolidated and tried together with
common issues framed and common evidence led by the
parties, resulting in a common judgment and decree, the same
can be subjected to challenge by way of a single appeal at the
instance of the aggrieved party;
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(ii) Where a single appeal is filed questioning the judgment and
decree passed in two suits, which were consolidated and
decided by a common judgment, decision of such single
appeal, by a common judgment, reversing or modifying the
.
claim in one suit out of the two, can be challenged by the
aggrieved party also, in a single appeal.
(iii) When two suits though not consolidated but are decided by a
common judgment, resulting into preparation of two separate
decrees, the aggrieved party would be required to challenge
both of them by filing separate appeals;
(iv) When both the suit and the counter claim are decreed by a
common judgment, regardless of whether separate decree has
been prepared in the counter claim, both would be required to
be challenged by separate appeals;
(v)
In a case where two separate appeals are required to be filed
against judgment of the suit and the counter claim and if
appeal is filed only against one and not against the other, non
filing of appeal against such judgment and decree would attach
finality thereto and would attract not only the principle of
resjudicata but also waiver and estoppal and the judgment and
decree not appealed against would be taken to have been
acquiesced to by the party not filing appeal;
(vi) When however, two appeals are filed against a common
judgment passed by the trial Court, both by the plaintiff and the
defendant, and are disposed of by the first appellate Court by
modifying/reversing/affirming judgment of the trial Court, the
aggrieved party, would be required to challenge both by two
separate appeals, in absence of which, non-filing of appeal
against one shall attract bar of the principles of res-judicata
against another.
(vii) Where more than one appeals are required to be filed or are
filed and one or more of them are dismissed for default, delay
or any other similar reason, any such situation would attract
res judicata and such dismissal would satisfy the requirement
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of appeal being heard and finally decided on merits "in a
former suit" for the purpose of attracting principles of res
judicata."
.
7. Present case is squarely covered by para 42(iv) and (vi) of
Ramesh Chand's case.
8. Learned counsel for the Board has submitted that Board
was not aggrieved by dismissal of Cross-Objection of plaintiff and,
therefore, there was no occasion or reason for the Board to assail
judgment and decree passed in Cross Appeal/Cross-objection No. 21 of
2007, dismissing the same and, therefore, she submits that ratio of law
laid down in Ramesh Chand's case is not applicable in present case,
particularly for the reasons that in the said judgment and decree, it has
been held that appeal has to be preferred by aggrieved person against
both judgments and decrees, whereas Board was not aggrieved by
dismissal of Cross-objection and, therefore, judgment in Ramesh
Chand's case is not applicable in present matter.
9. Plea of learned counsel for the Board is misconceived as in
para 42 of Ramesh Chand's judgment, referred supra, there is nowhere
stated that appeal has to be preferred by the person aggrieved in both
suits/appeals. The ratio of law laid down in the aforesaid case is that
divergent verdict, with respect to common judgment passed in more than
one suit or appeal, cannot coexist and in absence of assailing the
impugned order/judgment and decree in all suits/appeals, there shall be
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two converse and contradictory judgments and decree in existence in one
and the same circumstance.
10. At this stage, learned counsel for the Board by placing
.
reliance on judgment passed by the Supreme Court in Charan Singh Vs.
Ram Saroop SLP (C) D. No. 59467/2024, has submitted that appellant-
Board shall be permitted to file separate memorandum of appeal
assailing impugned judgment and decree in second Civil Appeal No. 21
of 2007 also in order to do substantial justice.
11. The facts in Charan Singh's case are different and
distinguishable and, therefore, this judgment is of no help to the
appellants/plaintiffs in present matter.
12. In Charan Singh's case the common judgment of the Trial
Court had been challenged in a composite appeal, i.e. by filing one and
the same appeal against judgment passed in both appeals. In present
case there is no composite appeal preferred by the appellant/plaintiff, but
appeal has been preferred only against judgment and decree passed in
one appeal. For filing composite appeal, it was observed by the Apex
Court in Charan Singh's case that as the composite appeal was filed well
within the period of limitation and, therefore, except for the fact that a
separate memorandum of appeal was not filed, no other defect, far less
serious defect, was shown to exist and, therefore, even if separate
memorandum of appeal was allowed to be filed at the stage of
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arguments, the second appeal would have been then within a period of
limitation. In present case, no appeal has been preferred against the
judgment and decree passed in the year 2008. We are in 2025.
.
Therefore, for expiry of limitation in assailing the judgment and decree
dated 26.5.2008 passed in another Civil Appeal No. 21 of 2007, appeal
shall be time barred.
13. Learned counsel for the Board has also drawn attention of
the Court to para 27 of judgment passed by a co-ordinate Bench in
Kamal Raj & Another Vs. Mehar Chand (deceased) through his Legal
representatives, reported in 2023 (Suppl.) Him L.R. (HC) 2496.
14. I failed to understand that how and in what manner the
observations made in para 22 of the judgment in Kamal Raj's case are
attracted in present matter. The observations of the Co-ordinate Bench
in para 22 are based on judgment of the Apex Court in State of Andhra
Pradesh and others Vs. B. Ranga Reddy (dead) by legal
representatives, reported in (2020) 15 SCC 681. In the said case, three
suits were consolidated, but separate decrees were passed by the Trial
Court. In first two decrees, suit of plaintiff was dismissed and dismissal
was assailed by the plaintiff by filing appeals, which were pending. Third
suit was decreed in favour of the plaintiff, against which one of
defendants (State) filed appeal and plea was taken that for not filing
appeals by the State challenging the common judgments passed in two
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other suits decided together, the principle of res judicata will be
applicable and thus appeal preferred by the State was not maintainable.
In this judgment, it was held by the Supreme Court that decree passed in
.
first two suits was under challenge in appeals and, therefore, it had not
attained finality and thus there was no former suit to which there could be
any application of Section 11 of the Code of Civil Procedure. The given
facts and circumstances of aforesaid case are entirely different to the
present case.
15. In present case no appeal is pending or preferred against
the common judgment and decree passed by the First Appellate Court in
Cross-objection/Appeal No. 21 of 2007, but challenge has been laid only
to the judgment and decree passed in Civil Appeal No. 11 of 2007.
16. In case, present appeal is entertained and allowed, then
common judgment and decree dated 26.5.2008 shall stand set aside in
Civil Appeal No. 11 of 2007, but the same judgment and decree with
common findings rendered by the First Appellate Court shall remain in
existence in Civil Appeal No. 21 of 2007.
17. There is common decree in present case. Common decree
cannot be bifurcated in two decrees. The decree is either to sustain or to
be set aside. It cannot be permitted that common judgment and decree
is valid for purpose of one appeal, but the same is set aside in other
connected appeal, decided by common findings and common judgment.
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18. Learned counsel for the Board has submitted that dismissal
of Cross-objection was to be assailed by the plaintiff, but plaintiff has not
assailed the same and, therefore, for that Board should not be made to
.
suffer, particularly when Board was not aggrieved by the judgment
passed in Civil Appeal No. 21 of 2007.
19. Once two appeals have been decided with common
judgment and decree by rendering inseparable findings, the appeals
should have been preferred against judgment and decree passed in both
appeals by clearly stating in memorandum of appeal that these appeals
were being preferred assailing the impugned common judgment and
decree to the extent which was against the appellant/Board. There was
no need to file an appeal by the Board for and on behalf of plaintiff, who
did not prefer appeal against the dismissal of Cross-objection. But for
setting aside common judgment and decree passed by the First Appellate
Court in two appeals, so far as it was against the Board, two separate
appeals against the said common judgment and decree were to be
preferred.
20. In view of aforesaid observations, I am of the opinion that
present appeal in absence of laying challenge to common judgment and
decree passed in connected appeal/cross-objection preferred by the
plaintiff, is not maintainable and accordingly dismissed.
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The appeal is disposed of in aforesaid terms alongwith
pending applications.
.
(Vivek Singh Thakur),
th
9 July 2025 Judge.
(Keshav)
r to
